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IINi 



BIODIVERSITY & 
HUMAN RIGHTS 

The International Rules 

for the 

Protection of 

Biodiversity 



Elli Louka 



Transnational Publishers 



Published and distributed by Transnational Publishers, Inc. 

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Science and Technology Center 

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Ardsley, NY 10502 



Phone:914-693-5100 

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Web: www.transnationalpubs.com 



Library of Congress Cataloging-in-Publication Data 

Louka, Elli. 

Biodiversity and human rights : the international rules for the protection 
of biodiversity / by Elli Louka. 
p. cm. 
ISBN 1-57105-226-7 

1. Biological diversity conservation. 2. Human rights. 1. Title. 

QH75 .L675 2002 
333.95'16'0973— dc21 

2002023616 



Copyright © 2002 by Transnational Publishers, Inc. 

All rights reserved. This book may not be reproduced, in whole or in part, in 
any form (beyond that copying permitted by U.S. Copyright Law in Section 
107, "fair use" in teaching and research, Section 108, certain library copying, 
and except in published media by reviewers in limited excerpts), without 
written permission from the publisher. 

Manufactured in the United States of America 



ToSMF 



Acknowledgments 



Many thanks to my teacher, Michael Reisman, for his support, and to 
my teacher at Wharton, Marshall Blume, for teaching me everything I 
know about the markets. Many thanks also to David Mair for his friend- 
ship and optimism. 



Contents 



List of Abbreviations xi 

Introduction 1 

Chapter 1 

Human Dignity as the Standard for International 

Biodiversity Management 

1 . Current International Policies 9 

1.1. The Lack of Human Rights Standards 9 

1 .2. Emphasis on National Management Standards 12 

1 .3. Prohibitions and Restrictions on Wildlife Trade 

as a Disincentive for Local Management 15 

1.4. Transnational Protected Areas 15 

1.5. Restricted Access to Germplasm Resources 17 

2. Proposed International Biodiversity Management 18 

2. 1 . Human Dignity and Human Rights as 

Threshold Standards 19 

2.2. Emphasis on Local Management Standards and 

Incentive Mechanisms 25 

2.3. Free Trade in Wildlife as an Incentive for 

Local Management 28 

2.4. Transnational Landscapes/International Conservancies 29 

2.5. Regulated Free Access to Germplasm Resources and 
International Gene Bank Development 31 

3. The Assumptions Behind the Policies 33 

3.1. Competing Definitions of Biodiversity 34 

3.1.1. Biodiversity as Ecosystem Preservation/ 
Biodiversity Loss as Extinction 34 

3.1.2. Biodiversity as Ecosystem Evolution/ 

Biodiversity Loss as Conversion 36 

3.2. Competing Approaches to Managing Biodiversity 38 

3.2.1 . Avoid Management at all Costs 38 

3.2.2. Management as a Necessity 39 

3.3. Competing Rationales for the Protection of Biodiversity 42 

3.3. 1 . Prevailing Rationale: Protecting Biodiversity for 

Biodiversity 42 



VII 



viii Contents 

3.3.2. Proposed Rationale: Human Dignity at the Core of 

Biodiversity Protection 46 

Chapter 2 
Evaluation of Biodiversity Protection Methods 

1 . Applying Conservation: Empirical Evidence 61 

1.1. Strict Enforcement in Nature Reserves 61 

1 .2. Prohibiting/Restricting Trade in Endangered Species: 

Black Markets and Poachers 66 

2. From Nature Reserves to Co-Management 70 

3. The Non-Consumptive Uses of Biodiversity 74 

3.1. Bioprospecting 74 

3.2. Extractive 76 

3.3. Ecotourism 77 

4. Privatization of Wildlife Management 79 

4. 1 . Privatization as Community Empowerment: 

CAMPFIRE and CBNRMP 79 

4.2. Privatization as Reduction of Government Overload: 

The Private Conservancies 85 

4.3. Privatization and the Wildlife Industry 88 

4.4. Biodiversity for Wealth: The Successful Privatization 

of Wildlife Management 90 

5. Restoration as a Biodiversity Protection Method 91 

6. Protecting Nature Outside Nature: Gene Banks 93 

7. Comparing and Choosing Biodiversity Protection Methods 95 

Chapter 3 
International Rules for National Conservation 

1 . International Treaties for Biodiversity Protection: 

The Triumph of Nationalistic Conservation 103 

2. The CITES Convention and the Biodiversity Convention 115 

2.1. The CITES Convention 115 

2.2. The Biodiversity Convention 117 

3. The Inability of the CITES Convention and the Biodiversity 
Convention to Stem Biodiversity Loss 127 

4. Funding for the Protection of Biodiversity 131 

Chapter 4 
International Rules for the Exchange of Germplasm 

1. Bilateralism Versus Free Access Multilateralism 135 

1.1. Background: Access to Germplasm Resources and 

Intellectual Property Rights 135 



Contents ix 

1.1.1. The Seed Wars 135 

1 . 1 .2. Intellectual Property Rights over Biodiversity 
Resources 140 

1.2. The Convention on Biological Diversity: Bilateral 
Agreements for Access to Plant Genetic Resources 143 

1 .3. The Treaty on Plant Genetic Resources for Food and 
Agriculture: Toward a Multilateral System for 

Access to Plant Genetic Resources 149 

1 .4. Property Rights over Indigenous Peoples' Knowledge 

and Farmers' Rights 155 

2. The IARCs as Gatekeepers of Plant Genetic Resources 157 

2.1. The Establishment and Evolution of the IARCs 157 

2.2. The Legal Personality of the IARCs 165 

2.3. The Status of the IARCs' Germplasm Collections 170 

3. Regulated Free Access as the Optimal System of Access to 

Plant Genetic Resources 1 74 

Conclusion 179 

Bibliography 185 

Index 195 



List of Abbreviations 



AAA American Anthropological Association 

CAMPFIRE Communal Area Management Programme for 

Indigenous Resources 
CBC Committee of Board Chairs 

CBNRM Community-Based Natural Resources 

Management 
CDC Center Directors Committee 

CGIAR Consultative Group on International Agricultural 

Research 
CIAT International Center for Tropical Agriculture 

CIFOR Center for International Forestry Research 

CIMMYT International Maize and Wheat Improvement 

Center 
CIP International Potato Center 

CITES Convention on the International Trade in 

Endangered Species of Wild Flora and Fauna 
EECONET European Ecological Network 

EIA Environmental Impact Assessment 

FAO Food and Agriculture Organization 

GEF Global Environment Facility 

IARCs International Agricultural Research Centers 

IBPGR International Board of Plant Genetic Resources 

ICARDA International Center for Agricultural Research in 

Dry Areas 
1CRAF International Center for Research in Agroforestry 

ICRISAT International Crops Research Institute for the 

Semi-Arid Tropics 
IDRC International Development Research Center 

IFPRI International Food Policy Research Institute 

IITA International Institute for Tropical Agriculture 

ILM International Legal Materials 



XI 



xii List of Abbreviations 



ILO International Labor Organization 

ILRI International Livestock Research Institute 

IPGRI International Plant Genetic Resources Institute 

IRRI International Rice Research Institute 

ISNAR International Service for National Agricultural 

Research 
ITTO International Tropical Timber Organization 

IUCN International Union for the Conservation of Nature 

MTAs Material Transfer Agreements 

NARS National Agricultural Research Systems 

NEFs National Environmental Funds 

NGOs Non-governmental Organizations 

NSSL National Seed Storage Laboratory 

OAU Organization of African Unity 

ODA Official Development Assistance 

OECD Organization for Economic Co-operation and 

Development 
PVPA Plant Variety Protection Act 

RAFI Rural Advancement Foundation International 

SBSTTA Subsidiary Body on Scientific Technical and 

Technological Advice 
TAC Technical Advisory Committee 

TRIPs Trade Related Intellectual Property Rights 

UN United Nations 

UNCED United Nations Conference for Environment and 

Development 
UNDP United Nations Development Programme 

UNEP United Nations Environment Programme 

UNESCO United Nations Educational Scientific, and 

Cultural Organization 
UPOV International Union for the Protection of New 

Varieties of Plants 
WARDA West Africa Rice Development Organization 

WTO World Tourism Organization 

WWF World Wildlife Fund for Nature 



Introduction 



Today many people believe that species are becoming extinct at an 
alarming rate because of forest destruction 1 and other consumptive uses 
of the biosphere. And this extinction continues despite the efforts, pro- 
pelled by the Convention on Biological Diversity, to stem biodiversity 
loss. 2 Because of this alleged dramatic species loss international poli- 
cies and rules have been developed to protect and preserve biodiver- 
sity. These policies, though, are frequently misguided because they are 
based on: 

(1) static notions of what biodiversity is; 

(2) conflicting feelings about the people who make a living out of it; 

(3) nationalistic tendencies of control over biodiversity resources; 

(4) trade prohibitions and restrictions that have rendered wildlife a 
rare resource traded illegally in black markets, 

Current policies on biodiversity are based on notions that biodiver- 
sity is "static," something that needs to be "preserved" as it is. The peo- 
ple who live around biodiversity resources are either viewed as 
indigenous people who need to be protected or as local people who need 
to be punished for what is viewed as their destruction of biodiversity 
resources. The center of these policies is "saving" biodiversity with 
emphasis on "preservation" or "conservation" 3 rather than on ecosys- 
tem evolution and management. 



1 Anecdotal evidence of forest destruction is burgeoning especially in devel- 
oping countries. Lately the Food and Agriculture Organization (FAO) has claimed 
that deforestation is abating. The FAO claims a slowdown of 20 percent compared 
with the deforestation rate measured in the first half of the decade, see FAO, The 
Global Forest Resources Assessment 2000 (2001 ). Many non-governmental orga- 
nizations have disputed the claim since the FAO figures are based on the combined 
calculation of forests and plantations. If plantations are excluded from consideration, 
natural forests in the tropics are disappearing at a rate of 1 6 million hectares a year, 
see Emily Matthews, Understanding the Forest Resources Assessment 2000 (2001 ). 

2 The Root Causes of Biodiversity Loss 2 (Alexander Wood et al. eds., 2000). 

3 Conservation implies the sound management of biodiversity given the existing 

1 



2 Biodiversity and Human Rights 

Even the recently adopted Biodiversity Convention is based on the 
conservation of biodiversity resources with emphasis on in situ conser- 
vation and national measures rather than local management, restoration 
or gene bank development. While the convention takes into account the 
needs of indigenous people and local people, it has yet to evolve into 
the instrument that would protect the rights of people as a means to bio- 
diversity protection. 

The alleged widespread species loss has led also to the adoption of 
mechanisms that prohibit or restrict the trade in endangered species. 
These restrictions and prohibitions rest on the rationale that if the trade 
in endangered species is outlawed, endangered species will be saved. 
However, engrained beliefs about the medicinal properties of or the sta- 
tus associated with products obtained from endangered species fuel 
demand and have created a black market that has enriched politicians 
and elites in developing countries. In the meantime, the poachers who 
operate on the ground — frequently poor farmers enticed to the trade 
because of the profits involved — are killed, tortured or jailed. 

This study proposes a fundamental review of the international biodi- 
versity protection policies. Instead of conservation/preservation, this 
study proposes to shift attention to ecosystem management with human 
dignity at the center of biodiversity protection. The human rights viola- 
tions that conservation often entails have been reported in previous stud- 
ies. Many studies have recommended a view of biodiversity that is 
dynamic and centers on the evolution of ecosystems rather than the 
preservation of biodiversity resources. In these studies it is recom- 
mended that the needs of people who live close to protected areas must 
be taken into account when designing conservation policies. 4 Without 



social and economic constraints. Conservation supports the management of the 
ecosystem to produce goods and services for humans without depleting diversity 
and acknowledges the dynamic character of the ecosystems. Preservation, on the 
other hand, implies the protection of species and natural areas without taking into 
consideration human needs. See Donald Show, Inside the Environmental Movement 
1 2-14 ( 1 992). In this study the terms "conservation" and "preservation" are used 
interchangeably since the pursuit of conservation in many areas of the developing 
world has produced results similar to those advocated by preservation. 

4 See, e.g., bibliography cited in Chapter 1 , Section 3.3.2. 



Introduction 3 

formal requirements and standards, though, such recommendations have 
fallen on deaf ears. This study establishes human rights standards as the 
threshold standards for biodiversity protection, and by doing so it seeks 
to formalize and standardize the requirement that human needs and aspi- 
rations must be incorporated into conservation goals and policies. This 
study goes one step further: it recommends that conservation policies 
should not be adopted unless basic human rights requirements are sat- 
isfied. 

Overall, the purpose of this study is twofold: 

(1) To establish human rights standards as the core standards of bio- 
diversity protection. 

(2) To propose a comprehensive system of international rules for 
the protection of biodiversity. (For the components of this sys- 
tem and how it compares with the current system, see Table 1 .) 
Today most international rules on biodiversity protection center 
on what each individual state can do to protect biodiversity. This 
study proposes that certain aspects of biodiversity protection 
could benefit from the development of a coherent system of 
international policymaking. Such aspects include wildlife trade, 
gene bank development and the transnational transfers of plant 
genetic resources. 

The international system proposed here is based on the premise that 
restrictions or prohibitions are a poor way to salvage endangered 
wildlife. On the contrary, policies must be developed that would allow 
people to generate direct monetary profits from the wildlife. If wildlife 
continues to be perceived as a rare resource that cannot be traded freely, 
the illegal trade will persist. But if wildlife becomes a commodity traded 
legally in international markets, illegal behavior will have to subside. 5 
Privatizing the management of endangered species for their products 
can motivate people to change their behavior and protect species other- 
wise considered unprofitable and thus dispensable. 



5 In today's regulated markets the initial lifting of a ban on the trading of a 
species or a product is likely to increase illegal behavior. But as the legal supplies 
of products start to meet the demand, the prices will stabilize minimizing specula- 
tive and illegal behavior. 



4 Biodiversity and Human Rights 



Table 1 : National Biodiversity Management versus international 
Biodiversity Management 



National Biodiversity Management 


International Biodiversity Management 


Assumptions 


Assumptions 


• Biodiversity as something static 


• Biodiversity as something dynamic 


• Ecosystem preservation 


• Ecosystem management 


• Biodiversity loss as extinction 


• Biodiversity loss as conversion 


• Biodiversity is best managed 


• Biodiversity is best managed 


locally 


locally but the international system 




can provide standards (human 




rights) and incentives (free trade) 




that support local management 


Rationale 


Rationale 


• Protect biodiversity tor its 


• Protect biodiversity because it 


intrinsic value 


serves human needs 


Policies for management 


Policies for management 


• Top-down national management 


• National and international 


standards 


guidelines applied locally 


• Lack of human rights standards 


• Human rights standards as 




threshold standards 


• Incentives based on: 


• Incentives based on: 


— non-consumptive uses of 


— all profitable uses 


biodiversity 




• Disincentives based on: 




— national wildlife management 


— local wildlife management 


and control 


and control 


— insecure land tenure 


— secure land tenure 


— prohibitions and restrictions 


— international free trade in 


on the trade in wildlife 


wildlife 


• National/regional management 


• International/regional/national 


of protected areas 


management of landscapes/ 




conservancies 


Policies for access to genetic 


Policies for access to genetic 


resources 


resources 


• Bilateral and multilateral 


• A Multilateral System of regulated 


arrangements for access to plant 


free access to all plant genetic 


genetic resources 


resources 


• National gene bank management 


• International gene bank management 


Implementation Procedures 


Implementation Procedures 


• Strict enforcement through 


• Self-enforcement and respect for 


human rights violations 


human rights 



Introduction 5 

Because biodiversity resources could occasionally become lucrative, 
developing states have asserted physical control over biodiversity 
resources residing within their territory. Today to get access to those 
resources, companies must obtain first the prior consent of the state. 
Countries are attempting also to impose restrictions on the free transfer 
of material located in national and international gene banks and espe- 
cially the material located in the International Agricultural Research 
Centers. This bureaucratic system that is surrounding the transfer of bio- 
diversity resources has hampered innovation. It is proposed here that, in 
order to encourage experimentation with biodiversity resources of 
unknown use, an effort must be made to ensure as much as possible 
unencumbered access to those resources. Unencumbered access, as ana- 
lyzed in Chapter 4, is not equivalent to uninhibited free access but it is 
access free of the bureaucracy encountered in many national systems 
today. For resources of known use located in international gene banks, 
controls may eventually have no material effect since most of these 
resources are duplicated in national gene banks. A restrictive interna- 
tional system, however, will make transfers of known, useful germplasm 
cumbersome, will create uncertainties, propel litigation, and stifle inno- 
vation. While today's politics would litigate against free access — the 
informal system that made possible the green revolution — regulated free 
access must be asserted to ensure that agricultural innovation will con- 
tinue well into the future. 

Regulated free access to resources will be facilitated if the 
International Agricultural Research Centers evolve into international 
institutions whose mandate will be the protection, experimentation 
and collection of germplasm for research purposes. As long as the 
International Agricultural Research Centers retain their ambiguous 
status, disputes will erupt about the resources they maintain. The 
International Agricultural Research Centers should be devoted to the 
international management of gene banks, provide assistance for the 
national gene bank programs of developing countries, and freely col- 
lect, preserve and disseminate germplasm to private or public enti- 
ties that would like to experiment with it. This study supports also the 
proliferation and streamlining of international gene banks. Inter- 
national gene banks benefit from the economies of scale put together 
by many states. Because they are supported by the broader international 



6 Biodiversity and Human Rights 

community, international gene banks are essential for the protection 
of biodiversity. 

The transnational management of transboundary resources is pro- 
posed here as a component of the international system for biodiversity 
protection. Many of the protected areas today straddle national frontiers, 
and they would benefit if the countries involved would cooperate con- 
structively in their management. Such cooperation exists today in some 
parts of the world, but it is in many cases nominal and a far cry from an 
actual co-management of the resource. Also many transnational man- 
agement efforts do not incorporate human dignity values and are 
focused on the management of "pure protected areas" rather than the 
management of inhabited landscapes. Community-based management 
or private conservancies based on the communal/private control of 
wildlife resources and secure land tenure are still national efforts to pro- 
tect biodiversity and serve human needs. This study supports the inter- 
national application of such efforts as a means to change the current 
model of conservation that implies the subordination of human needs 
to conservation goals. 

To summarize, human rights, free trade in wildlife, transboundary 
management of transnational resources, international gene bank man- 
agement guaranteed by regulated free access are proposed here as the 
cornerstone of an international policy for biodiversity management {see 
Figure 1). International biodiversity management does not mean that the 
details of biodiversity protection will be managed internationally. It 
means that the international system will use all of its tools including 
human rights instruments and free trade mechanisms to provide the 
guidance and incentives needed so that the local management of biodi- 
versity resources can succeed. The international system could help 
resolve many of the issues involved in the management of transbound- 
ary resources and in the management of gene banks worldwide. 
International biodiversity management, as proposed here, may not 
achieve to "save" all biodiversity as it exists today. International biodi- 
versity management can, however, help to maintain productive ecosys- 
tems, "save" many of the admired species, ensure agricultural innovation, 
and most of all contribute to the betterment of the lives of the poor of 
the developing world by treating them with the dignity they deserve. 



Introduction 7 



Figure 1 : International Biodiversity Management 



International Biodiversity Management 




Local Wildlife Management and Control 



This book concentrates on the terrestrial biodiversity resources in 
developing countries and attempts to answer the question: what are the 
international policies needed to protect biodiversity without compro- 
mising human dignity and human rights values? Before prescribing such 
polices this study examines the prevalent definitions of biodiversity and 
the rationales that have been put forward for protecting it. 

More specifically, Chapter 1 expands on the central claim of this 
study that biodiversity protection is dynamic and that it must include 
ecosystem management and restoration. Human dignity must be at the 
core of biodiversity protection. Chapter 1 defines biodiversity as ecosys- 
tem evolution and biodiversity loss as ecosystem conversion rather than 



8 Biodiversity and Human Rights 

ecosystem destruction. Chapter 1 proposes a new rationale for the pro- 
tection of biodiversity, namely human dignity, and establishes human 
rights standards as the threshold standards for biodiversity protection. 
Chapter 1 examines the causes of biodiversity conversion and proposes 
minimum management standards that as a supplement to human rights 
standards provide the framework for the local management of biodi- 
versity resources. Chapter 1 further analyzes the premises for the 
transnational management of transboundary resources and international 
gene bank development. 

Chapter 2 examines the current available empirical evidence on the 
application of conservation methods and analyzes the current manage- 
ment options for biodiversity protection. Chapter 2 demonstrates that 
the conflicts between conservation and human rights make strict nature 
reserves unsustainable and privatization, restoration and gene bank 
development the preferable methods of biodiversity protection. 

Chapter 3 examines the international instruments of conservation, 
including the Convention on the International Trade in Endangered 
Species of Wild Flora and Fauna (CITES) and the Convention on 
Biological Diversity. Chapter 3 examines the reasons behind the inabil- 
ity of these instruments to stem biodiversity conversion. 

Chapter 4 examines the property rights over natural and genetic 
resources including physical control over biodiversity resources and the 
assertion of intellectual property rights over the modification of biodi- 
versity resources. Chapter 4 analyzes the Convention on Biological 
Diversity and the Treaty on Plant Genetic Resources for Food and 
Agriculture and proposes regulated free access as the best system for 
the transfer and exchange of germplasm resources. 



Chapter 1 

Human Dignity as the Standard for 

International Biodiversity Management 



1 . CURRENT INTERNATIONAL POLICIES 

1 .1 . The Lack of Human Dignity Standards 

Many developing states have adopted strict laws for the protection of bio- 
diversity that exclude people from biodiversity-rich areas and prohibit 
any sort of consumptive use in these areas. The enforcement of these laws 
depends on how much there is at stake in terms of the benefits brought 
by biodiversity protection and the costs of enforcement measures. 

Developing countries that do not experience direct monetary bene- 
fits from biodiversity protection hardly enforce domestic regulations. 

Developing countries who benefit from biodiversity because of a 
flourishing wildlife industry (including ecotourism, mass tourism and 
safari hunting) 1 enforce regulations depending on the amount of 
resources they have for enforcement. When the resources are abundant 
strict enforcement is the norm. Strict enforcement is necessary because, 
as explained below, most of the benefits from biodiversity protection do 
not trickle down to the people who live around biodiversity-rich areas 
and who break biodiversity protection laws to be able to survive. Strict 
and inhumane enforcement is an indispensable component of biodiver- 
sity protection policies in many developing countries. 

The rhetoric of developed countries is also replete with references to 
strict enforcement in the nature reserves of the developing world. Even 
in studies that focus on reconciling human use and conservation, strict 
enforcement is proposed against "the intruders" of reserves. In a study 
sponsored by the World Bank, the World Wildlife Fund and the United 



1 Wildlife's importance as an economic commodity is prevalent in Africa 
where revenues from safari hunting and tourism often supplement revenues from 
agriculture and copper mining. See Clark C. Gibson, Politicians and Poachers: The 
Political Economy of Wildlife Policy in Africa ( 1 999). 



10 Biodiversity and Human Rights 

States Agency for International Development it is mentioned that: 
"There is always likely to be a conflict of interest between rural peo- 
ple's ability to earn a living and the management of nearby protected 
areas. It is unrealistic to assume that resource-poor people, living 
next to what may appear to them to be limitless resources of land . . . 
will readily support conservation ideas . . . conflicts cannot be expected 
to disappear, and the general need for strict enforcement appears 
inescapable." 2 

Strict enforcement has been legitimized by the practices of interna- 
tional institutions including the World Bank. 3 The World Bank has 
adopted a series of progressive policies aimed at protecting the rights 
of indigenous peoples, However, many of these policies have not been 
implemented. Many indigenous groups are still evicted from protected 
areas as a result of eco-development projects supported by the World 
Bank. 4 In a World Bank internal review it was found that only 15 out of 
33 projects commissioned by the World Bank had taken into account 
the policies prescribed for the benefit of indigenous peoples. 5 



2 Michael Wells & Kartina Brandon, People and Parks: Linking Protected 
Area Management with Local Communities 47 (World Bank, World Wildlife Fund 
& U.S. Agency for International Development eds., 1992). 

3 In 1982, the World Bank adopted guidelines on "Tribal People in Bank- 
Financed Projects." Despite the adoption of the policy, indigenous peoples are still 
adversely affected by the World Bank policies. In 1987, the World Bank adopted a 
new policy the purpose of which was to ensure "that indigenous peoples do not suf- 
fer adverse effects during the development process . . . and that they receive cul- 
turally compatible social and economic benefits." The policy promoted participation 
of indigenous peoples in project design and implementation, land tenure and 
resource security. But again in 1997 it was found that only 19 out of 48 projects 
attempted to address indigenous peoples needs as prescribed by the World Bank. 
Since 1998, the World Bank has been revising its indigenous peoples' policies with 
more emphasis on "self-development" and poverty alleviation. See Thomas 
Griffiths & Marcus Colchester, Indigenous Peoples, Forests and the World Bank: 
Policies and Practice 5-8 (Draft Discussion Document, Workshop on Indigenous 
Peoples, Forests and the World Bank, May 9-10, 2000). 

4 See Chapter 2, Section 1.1. 

5 See supra note 3, at 1 0. 



Human Dignity as the Standard 1 1 

Developed countries occasionally provide unilaterally the financial 
support to developing countries to ensure that environmental regulations 
are strictly enforced. But the intensity of support rendered by developed 
countries hedges on a number of factors. Terrorism, natural disasters 
and economic downturns often crowd the agendas of states and detract 
attention from environmental issues. Financial support for the strict 
enforcement of environmental laws is often lacking because "saving bio- 
diversity" is not at the top of the agenda of many states. Many states 
believe that all the biodiversity needed for human purposes is already 
locked in in their national gene banks. 

Strict enforcement, when applied in developing countries, often 
involves violent evictions of local people from conservation areas and 
shoot-to-kill policies. Kenya, for instance, has responded to the elephant 
poaching by ordering on-sight killing of poachers. 6 Poachers are often 
portrayed as hard-core criminals while, in reality, those who operate on 
the ground are often small farmers trying to make a living. What is sur- 
prising is that shoot-to-kill policies and large-scale evictions have been 
applauded and materially supported by groups who view them as the 
last resort measure in their battle to save nature. The World Wide Fund 
(WWF) provided Zimbabwe with the funds to buy a helicopter for its 
anti-poaching war. Deploying the helicopter, Zimbabwean soldiers killed 
more than fifty suspected poachers. 7 International donors, as an 
exchange for their contributions to preservation, have demanded the 
evictions of local populations. During the 1988 eviction of Maasai from 
the Mkomazi Game Reserve in Tanzania, the park's rangers burnt homes 
and destroyed property and livestock. 8 In 2000, the Bushmen from the 
Kalahari Desert in Botswana have been beaten and tortured because of 
hunting. Forced evictions ended officially in 1998 but the authorities do 
not view favorably the resettlement of Bushmen in their reserve. In 



6 For more details on Kenya's enforcement, see Chapter 2, Section 1 . 1 . 

7 Raymond Bonner, At the Hand of Man: Peril and Hope for Africa 's Midlife 
(1993). 

8 Chief Edward Mbarmoti, "Mkomazi Game Reserve Now a 'Zoo,'" Econews 
Africa, Volume 5, Number 9, May 2, 1996. 



12 Biodiversity and Human Rights 

March 2001, the local council stopped the provision of health care ser- 
vices, food and water to the villages in the reserve. 9 

Despite these egregious human rights violations, further details of 
which are provided in Chapter 2, 10 none of the international biodiver- 
sity protection instruments establishes human right standards as the 
threshold standards of biodiversity protection. Even the most recent bio- 
diversity protection instruments, including the Convention on Biological 
Diversity, while they refer to the problems of poverty in the developing 
world and acknowledge the contributions of indigenous peoples to bio- 
diversity," are silent with regard to biodiversity protection in terms of 
human dignity values. 

1.2. Emphasis on National Management Standards 

In order to stem biodiversity conversion, countries have established 
national standards and adopted international guidelines. But monitor- 
ing and enforcement of standards are extremely limited when it comes 
to biodiversity protection. Who could possibly monitor and enforce reg- 
ulations in a consistent and effective way in vast areas of treacherous 
land such as a tropical rainforest? Unless significant financial resources 
are committed, most monitoring and enforcement will produce far less 
than optimal results. Some countries may decide that strict enforcement 
is not in their best interests while others may decide that the benefits 
from biodiversity protection exceed the costs of enforcement and may 
do whatever is needed to enforce environmental laws including violat- 
ing human rights. However, even, in this latter case, enforcement is 
rarely pervasive enough to deter people desperate to survive. 

Many international and national rules have concentrated on the devel- 
opment of logging standards. Standards for logging are especially 
important because logging per se, while the cause of primary forest 



9 "Botswana-Bushmen Tortured for Hunting," Survival International Bulletin, 
May 200 1, available online at http://www.survival.org.uk/bushmanuabO 1 05.htm. 

10 Chapter 2, Section 1.1. 

1 ' See Chapter 3, Section 2. 



Human Dignity as the Standard 13 

clearance, is not the cause of deforestation and biodiversity loss. 12 After 
the original removal, if the land is left undisturbed, regrowth can be 
quick. Also soil erosion is unlikely to happen if the right logging tech- 
niques are applied. 13 

Most sound logging techniques, though, are not applied consistently. 
Some of them are considered impractical and costly at least in the short- 
term. 14 Companies with limited concession agreements do not have the 
incentives to assist in maintaining the productivity of forested land 
beyond their tenure. 15 Untrained workers, left without supervision, are 
reluctant to apply more complex harvesting techniques. 16 And govern- 
ments do not simply have the resources to monitor the implementation 
of national legislation and all concession agreements. 



12 See infra Section 3.3.2. 

13 Methods to avoid unnecessary forest destruction include: avoiding the use 
of heavy machinery, use of balloon and helicopter instead of road transportation 
for harvested wood, road reduction and revegetation, keeping logs off the ground, 
maintenance of litter layer and understory vegetation, buffer zones around stream 
channels. See Jack Westoby, Introduction to World Forestry 157 (1989); L.S. 
Hamilton & A.J. Pearce, "Soil and Water Impact of Deforestation," in Deforestation: 
Social Dynamics in Watersheds and Mountain Ecosystems 75 (J. Ives & D.C. Pitt 
eds., 1 988); Conservation of Genetic Resources in Tropical Forest Management 26 
(FAO Paper 107 ed., 1993). See also John Wyatt-Smith, "Problems and Prospects 
for Natural Management of Tropical Moist Forests," in Natural Management of 
Tropical Moist Forests 5, 13 (Francois Mergen & Jeffrey R. Vincent eds., 1987). 

14 Hamilton & Pearce, id. at 88. See also A. Gomez-Pompa & F.W. Burley, 
"The Management of Tropical Natural Forests," in Rain Forest Regeneration and 
Management 3, 15 (A. Gomez-Pompa, T.C. Whitmore & M. Hadley eds., 1991). 

15 For example, concessions in Asia are granted for periods of 21-25 years, 
even though the minimum realistic felling cycle is 30-35 years and the rotation is 
60-70 years. Concession size and duration are very important in maintaining sus- 
tainable forest management. However, most of the time concessions granted are too 
small in size and duration and the concessionaires have no incentives to care about 
the future productivity of the land. See E. Barbier et al., Economic Linkages 
Between Trade in Tropical Timber and the Sustainable Development of Forests 48 
(Final Report, International Institute for Environment and Development ed., 1993). 

16 Wyatt-Smith, supra note 1 3, at 14. 



14 Biodiversity and Human Rights 

International policymaking on logging standards has been helpful in 
giving guidance on what good logging practices are, 17 but it is followed 
rarely by monitoring and enforcement. Since the damage to the soil and 
the forest has to do more with forest management on the ground rather 
than with the quantity of timber removed, monitoring becomes even 
more crucial. 18 The difficulty of imposing and enforcing logging stan- 
dards shows how difficult it is to impose standards for agriculture and 
grazing. 19 Agriculture and grazing are much more fragmented activities 
and are performed by millions of households rather than by a few large 
companies. Unless these households decide that it is in their best inter- 
ests to comply, biodiversity conversion will continue as usual even in 
the face of strict enforcement. As mentioned above, enforcement mea- 
sures, no matter how drastic they are, can rarely curb the will of people 
who see the violation of the law as their only means to survival. 



17 See ITTO Guidelines for the Sustainable Management of Natural Tropical 
Forests (ITTO Policy Development Series 1 ed., 1992). 

18 See Caroline Sargent & M. Lowcock, "Options for the Coordination of 
International Action in Forest Conservation and Management," in Technical 
Workshop to Explore Options for Global Forestry Management 153 (David n 
Howlette & Caroline Sargent eds., 1991). 

19 Today farmers are encouraged to adopt what is called "sustainable agricul- 
ture." Sustainable agriculture involves, inter alia: 

• soil conservation — many farmers combat soil erosion by non-till farming; 

• conservation tillage and other techniques; 

• sound management of water supply and use; 

• avoidance of the salinization and contamination of water by pesticides; 

• reduction of air pollution (which includes smoke from agricultural burning 
and nitrous oxide emissions from the use of nitrogen fertilizer). 

The most adverse environmental impacts associated with grazing can be mitigated 
by applying the appropriate grazing system. The application of the appropriate graz- 
ing system means that: first, the number of stock per unit area (stocking rate) must 
be correct for the landscape and the forage resources; second, the long-term car- 
rying capacity of the stocking rate must take into account short and long-term 
droughts; third, the manager must achieve sufficient control to reduce the overuse 
of some areas and the underuse of other areas. See Gail Feenstra et a!., What Is 
Sustainable Agriculture? (UC Sustainable Agriculture Research and Education 
Program, University of California, Davis, December 1997), available online at 
http://www.sarep.ucdavis.edu/concept.htm. 



Human Dignity as the Standard 15 

1 .3. Prohibitions and Restrictions on Wildlife Trade as a 
Disincentive for Local Management 

Most commodities in the world today are freely traded. But the same is 
not true with wildlife. Wildlife trade is greatly restricted or prohibited 
by the CITES Convention. While international institutions generally 
support the South-to-North trade in agricultural products, the trade in 
wildlife is heavily controlled. According to some commentators, free 
trade is propagated by the developed world as means to increase pro- 
ductivity, but when it comes to free trade in wildlife — a commodity in 
which the developing world enjoys a competitive advantage — the trade 
becomes restrictive. 20 

Free trade in wildlife is not supported because, according to the pre- 
vailing view, wildlife is not a commodity. Most of wildlife resources, 
according to some estimates, are on the verge of extinction. If this is 
true they could hardly be categorized as commodities and they need to 
be protected. The CITES Convention restricts/bans the trade in wildlife 
to achieve exactly that: its protection. 

But, as will be seen below, the restrictions and prohibitions have cre- 
ated illegal markets in which wildlife is traded. 21 Restrictions and pro- 
hibitions have undermined also local wildlife management systems that, 
if pursued under a free trade regime, could provide significant wealth 
for many people in developing countries. 

1 .4. Transnational Protected Areas 

The only means of international biodiversity management supported by 
the current international system is that of the development of transna- 
tional protected areas. As analyzed in Chapter 3, many treaties support 
the efforts of states to develop and manage collectively their protected 
areas. The possibilities of the transnational management of protected 
areas are bountiful given the number of protected areas that are shared 



20 Marshall Murphree, "Rural Poverty, Democracy and Wildlife Conservation," 
available online at http://wildnetafrica.co.za/cites/info/vfs_essay_001.html. 

21 See Chapter 2, Section 1 .2. 



16 Biodiversity and Human Rights 

across borders and the economies of scale that can be taken advantage 
of in the management of such areas. 22 

Today efforts to create transnational parks involve informal/grass 
roots liaisons or formal agreements that take the shape of joint declara- 
tions, memoranda of agreement, or letters of intention. While formal 
agreements are the strongest basis for the establishment of joint pro- 
tected areas, grass-roots cooperation is needed for the everyday smooth 
functioning of a transnational area. 

One of the most ambitious efforts to manage biodiversity transna- 
tionally involves the agreement signed in 2000 by South Africa, 
Zimbabwe and Mozambique. The purpose of the agreement is to create 
a cross-border conservation park managed by a transnational authority 
to promote biodiversity protection and ecotourism in the region. The 
effort is ambitious because the parties to the agreement are of unequal 
economic power and obstacles remain such as that of controlling 
Mozambique's population as it tries to infiltrate South Africa through 
the park and poaching in both Zimbabwe and Mozambique. 23 

Other efforts include: transboundary collaboration between the United 
States and Mexico along the United States-Mexican border, 24 the tri-state 
project between the Central African Republic, Congo and Cameroon 25 



22 Dorothy C. Zbicz, Transfrontier Ecosystems and Internationally Adjoining 
Protected Areas ( 1 999) (for instance, 136 clusters of contiguous protected areas 
have been identified. All these clusters contain 488 individual protected areas and 
involve 98 different countries almost half of the world's 224 countries and depen- 
dent territories. Each cluster is comprised by at least two protected areas. Some 
clusters contain up to thirteen protected areas). 

23 "S. Africa, Neighbors Sign Cross-Border Park Pact," Reuters News Service, 
Nov. 13, 2000, available online at http://www.reuters.com. 

24 Jose Cisneros, "Transboundary Collaboration in the Protection of Shared 
Natural Resources along the United States-Mexico Border," in Parks for Peace 61 
(International Conference on Transboundary Protected Areas as a Vehicle for Inter- 
national Co-operation, September 1997, Conference Proceedings, Draft of 30 Jan. 1998). 

25 Steve Gartland, "The Central African Experience in Transfrontier Protected 
Areas. A Case Study of theTri-State Project Between the Central African Republic, 
Congo, Cameroon; and the National Parks between Cameroon and Nigeria," in 
Parks for Peace, id. at 242. 



Human Dignity as the Standard 17 

and the transfrontier reserve on the Korean Peninsula. 26 Efforts in sup- 
port of transnational management have been reported also in the Asian 
region, for instance, a nature reserve in the Tibet Autonomous Region 
of China and four protected areas of Nepal. 27 

Other efforts to manage resources across national borders include the 
transfrontier exchange of wildlife. According to an agreement between 
South Africa and Angola, for instance, South Africa has agreed to export 
a portion of its excess elephant population to the war-ravaged Angola. 
South Africa has 12,000 elephants and their numbers have reached sat- 
uration points in several parks. 28 

As will be explained below, this study supports the notion of man- 
aging transboundary resources transnationally. It prefers, though, the 
use of the term "transnational landscapes" instead of the term "transna- 
tional protected areas" for the purposes of emphasizing that the protec- 
tion of biodiversity cannot be accomplished effectively without allowing 
for human use and habitation of many of the world's landscapes. 

1 .5. Restricted Access to Germplasm Resources 

Today states attempt to control access to their germplasm resources by: 

setting so many restrictions that the access to germplasm within 
their borders is almost prohibitive; 

attempting to restrict the access to the resources located in the 
International Agricultural Research Centers; 

attempting to repatriate the resources located in international 
gene banks; 



26 Arthur Westing, "A Transfrontier Reserve for Peace and Nature on the 
Korean Peninsula," in Parks for Peace, id. at 234. 

27 Camille Richards, "Transboundary Collaboration in Biodiversity Conser- 
vation," NepalNet, available online at http://www.panasia.org.sg/nepalnet/ecol- 
ogy Ztransbound.htm. 

28 Ed Stroddard, "South Africa to Export Excess Elephant Population to 
Angola," Reuters News Service, Sept. 4, 2000, available online at http://www. 
reuters.com; see also "First Elephants Airlifted from South Africa to Angola," Afro! 
News, Sept. 1 1, 2000, available online at http://www.afroI.com. 



18 Biodiversity and Human Rights 

• attempting to prevent the assertion of intellectual property rights 
over resources initially found within their territory. 

Restrictions of access to unknown germplasm and attempts to con- 
trol the free exchange of seeds worldwide have jeopardized international 
gene bank development and have posed a threat to food security. 

The only hope out of the bilateral restrictions on the free exchange 
of germplasm is offered by the Multilateral System established under 
the Treaty on Plant Genetic Resources for Food and Agriculture. This 
system, as articulated right now, allows for regulated free access to a 
small number of resources for food and agriculture. This study supports 
the expansion of regulated free access to all (in situ and ex situ) resources. 29 

2. PROPOSED INTERNATIONAL BIODIVERSITY 

MANAGEMENT 

This study proposes that international policies could generate a funda- 
mental shift in the way we think about biodiversity. International rules 
can call for biodiversity management instead of biodiversity preserva- 
tion. And international rules can place human dignity at the core of bio- 
diversity protection. 

It is proposed here that the policy on biodiversity protection should 
be based on the admission that it is futile to attempt to preserve "pris- 
tine" biodiversity. Some biodiversity as we see it today will be converted 
to other uses. This is because of the causes of biodiversity conversion. 
As mentioned below, 30 these causes lie deep in the conditions of the 
developing world and are difficult to eradicate by quick remedies such 
as trade prohibitions and exclusive protected areas. This is especially so 
when the strict enforcement of these remedies is unacceptable from a 
human rights perspective. 

As long as the majority of the people in the developing world remain 
poor and disenfranchised some of the biodiversity will be converted to 
other uses. Taking this conversion as a given, the best course of action 



29 See infra Section 2.5. See also Chapter 4. 

30 See infra Section 3.3.2. 



Human Dignity as the Standard 19 

policymakers can take is to establish standards and incentives to pro- 
tect, at least, some of the evolution of the existing diversity. First order 
standards are human rights standards. Biodiversity must not be protected 
if such protection violates human rights norms as they have been artic- 
ulated in the human rights instruments. Second, guidelines must be pre- 
scribed and incentives must be given, at the international and national 
level, for the consumptive uses of biodiversity resources to achieve as 
much as possible the sustainable management of those resources. Third, 
the guidelines should be implemented locally and people who live close 
to biodiversity-rich areas must be given the authority to decide how to 
best manage those areas. (For the proposed approach to biodiversity pro- 
tection versus the current approach, see Table 2.) 

2.1 . Human Dignity and Human Rights as Threshold 
Standards 

Human Dignity and Human Solidarity 

Because the causes of biodiversity loss run deep in the economic con- 
ditions of the developing world, excluding people from officially des- 
ignated protected areas will not achieve the goal of biodiversity 
protection. People will intrude the areas to plunder the resource and will 
be expelled in violation of their fundamental human rights. Therefore, 
it is necessary, when designating protected areas, that the interests and 
aspirations of people be granted central importance. Making human 
needs the center of biodiversity protection policies has been proposed 
so many times that it sounds trite. Many conservation programs claim 
today that they take into account human needs. For most of these pro- 
grams, though, human needs are an afterthought in the service of bio- 
diversity protection. It has happened rarely that biodiversity protection 
becomes the vehicle through which socials needs are met. 

The human dignity standard proposed here and exemplified by human 
rights norms requires that the people of the developing world be viewed 
as the people whose needs are granted priority status in biodiversity pro- 
tection. Human dignity demands that we look at other people, includ- 
ing the people of the developing world, the way we look at ourselves 
what Richard Rotry called "human solidarity." For most people, the 



20 Biodiversity and Human Rights 



Table 2: Protection of Biodiversity 





Prevailing Approach 


Proposed Approach 


What 


Ecosystem Preservation 


Ecosystem Evolution 


Why 


Because Biodiversity has 


Because biodiversity has 




value by Itself 


value to the extent that it 
does not undermine Human 
Rights Standards and does 
relieve the Poverty in the 
Developing World 


How 


National Management/ 


Local/National/ 




Strict Enforcement 


International Management/ 
Se//-Enforcement 



phrase "one of us" means usually something smaller than the human 
race. Human solidarity is the ability to extend our sense of "we" to 
include people previously thought as "they." 31 Unfortunately, the peo- 
ple of the developing world are viewed often as either an obstacle to bio- 
diversity protection or an instrument that could save biodiversity. 32 

It is proposed here that policies that do not pass the human dignity 
standard must not be applied for the protection of biodiversity. For 



31 Richard Rotry, Contingency, Irony and Solidarity 191 (1989). 

32 See David Takacs, The Idea of Biodiversity 212(1 996). (Dan Janzen, a con- 
servation biologist, has stated: "[I]f you take a bunch of people out of any tropical 
region, and they don't have that level of biological literacy. . . . If you want those 
populations to manage their own natural resources . . . we've got to get them back 
to some basic understanding of what the natural history of the organism that they 
are managing. . . . And you just go into how appalling, how appallingly biologi- 
cally illiterate these communities are. Well, if you go then and you educate those 
people — and 1 say give them back biocultural restoration, meaning give them bio- 
logical literacy back—- that is a very economic argument, a very pragmatic one. 
You're [producing a population who are] happier, healthier, saner, easier to man- 
age, and can manage their own affairs better. . . . [emphasis added]."). 

Some conservation biologists are even cruder. For instance Huge litis, a con- 
servation biologist, derides his opponents as special interest groups whose envi- 
ronmental goals are "colored by the need to help people [emphasis added]." For 
litis, "if you put people first, you're lost right from the start. It's a slippery slope 
from which you can't get up once you start sliding." Id. at 1 82. 



Human Dignity as the Standard 21 

instance, policies that treat the people of the developing world as pop- 
ulations needing management and education to understand their own 
interests or as another type of resource do not meet the human dignity 
standard. Policies that render current generations poor and disenfran- 
chised for the good of the future generations do not pass the human dig- 
nity standard. Policies that try to keep indigenous peoples as they are 
and do not respect the evolution of their culture do not meet this stan- 
dard. Policies that demand the eviction of people from protected areas 
without their informed consent and without providing commensurate 
benefits, as defined by the people who are evicted, do not meet this 
standard. 

The human dignity standard does not prescribe exactly what to do in 
order to protect biodiversity. It tells us, though, what not to do when bio- 
diversity protection and human needs collide by granting unequivocal 
priority to the protection of human rights. In this sense, the human dig- 
nity standard is a negative standard that prescribes that development no 
matter its name — eco-development or industrial development — must 
not be achieved by creating more pain and suffering among the poor and 
the disenfranchised people of the developing world. 

Human Dignity and Human Rights 

Human dignity must be at the core of biodiversity protection policies 
and the standards and incentives that support those policies. Human dig- 
nity has been the core of the human rights regime since the adoption of 
the first human rights instruments 33 but it is never referred to in the con- 
text of biodiversity protection. And yet it is in the context of biodiversity 



33 The first human rights instrument, the Universal Declaration of Human 
Rights, was adopted in 1948 after World War II. While the declaration is not a 
legally binding instrument, its provisions "either constitute general principles of 
law or represent elementary considerations of humanity." See Basic Documents on 
Human Rights I06 (Ian Brownlie ed., 1971). 

According to Article I of the Universal Declaration of Human Rights: 

All human beings are born free and equal in dignity and rights. They are 
endowed with reason and conscience and should act towards one another in 
a spirit of brotherhood. 



22 Biodiversity and Human Rights 

protection that many human rights norms are violated. This study pro- 
poses the development of an international regime in which human dig- 
nity and international biodiversity management are inextricably linked. 
Human dignity must become the theme of biodiversity protection and 
the core standard of biodiversity protection policies. 

Human dignity as expressed in the human rights instruments is essen- 
tial to achieve biodiversity protection with a humane face. Up until now 
international environmental policies juxtapose the terms "environment" 
and "development." 34 Governments of the developing world have argued 
that environmental protection cannot proceed unless the development 
and welfare of their population is secured. Since development has to do 
with human welfare, it is assumed that there is no reason to invoke 
human dignity as the cornerstone of biodiversity protection. 

Development, though, is not synonymous with human rights. There 
is a difference between the counter-position of "environment" to "devel- 
opment" and the counter-position of "environment" to " human rights." 
Development can be viewed strictly as an increase in the Gross National 
Product (GNP). Human rights have to do with the prevention of torture, 
the right to property and the right to food. 

Human rights are becoming even more instrumental when it is con- 
sidered that biodiversity protection is becoming another vehicle for devel- 
opment. While it seems counterintuitive to see biodiversity protection as 
just another version of development, this is essentially what it is increas- 
ingly becoming. Today biodiversity protection involves intensive manip- 
ulation of ecosystems to produce a variety of goods from recreation to 
commercial production. Biodiversity protection is bound to become even 
more technocratic with the intensive application of bio-engineering and 
restoration. Since biodiversity protection is another expression of devel- 
opment, the balancing act that has to be performed is not between envi- 
ronmental values and development values. It is between two kinds of 
development. The welfare of humans in terms of the fulfillment of their 
basic, economic, political and social rights must be used to gauge the 
human rights implications of different types of development. 



34 The Rio Declaration on Environment and Development exemplifies the jux- 
taposition between environment and development. See Rio Declaration on 
Environment and Development, June 13, 1992, A/CONF. 15 1/26 (Vol. 1). 



Human Dignity as the Standard 23 

Trusting the defense of the poor of the developing world to human 
rights standards will not always force governments to comply. Human 
rights norms are not absolute norms, they are subject to broad excep- 
tions. The centerpiece of human rights protection — the International 
Covenant on Economic and Social Rights 35 and the International 
Covenant on Civil and Political Rights 36 — includes broad exceptions to 
the general human rights principles. 37 In addition, developing countries 
have often rebuffed western articulations that human rights are the 
inevitable outcome of the progress of civilization. Developing countries 
view human rights, instead, as the result of specific events — the 
American and French revolutions — that have shaped the cultural 
attitudes of the North. And Southern cultural attitudes do not have to 
mimic Northern cultural attitudes. 38 



35 International Covenant on Economic, Social and Cultural Rights, Dec. 16, 
1966, General Assembly Resolution 2200A (XXI), reprinted in Basic Documents 
on Human Rights 1 99 (Ian Brownlie ed., 1 97 1 ). 

36 International Covenant on Civil and Political Rights, Dec. 16, 1966, General 
Assembly Resolution 2200A (XXI), reprinted in Basic Documents on Human 
Rights 21 1 (Ian Brownlie ed., 1971 ). 

37 See art. 4 of the International Covenant on Economic, Social and Cultural 
Rights, supra note 35: 

The States Parties to the present Covenant recognize that ... the State may 
subject such rights only to such limitations as are determined by law only in 
so far as this may be compatible with the nature of these rights and solely for 
the purpose of promoting the general welfare of the democratic society. 

See also art. 4( 1 ) of the International Covenant on Civil and Political Rights, supra 
note 36: 

In time of public emergency which threatens the life of the nation, the States 
Parties to the present Covenant may take measures derogating from their 
obligations under the present Covenant to the extent strictly required by the 
exigencies of the situation, provided that such measures are not inconsistent 
with their other obligations under international law and do not involve dis- 
crimination solely on the ground of race, colour, sex, language, religion or 
social origin. 

38 African countries as they emerged from colonialism were the first to object 
to the universalistic nature of individual rights. African countries claimed that 



24 Biodiversity and Human Rights 

Arguments aside, however, countries seem to agree on a quite large 
core of human rights. No country, for instance, could boldly claim that 
torture, famine, deprivation and degradation of human life are the 
inevitable prerequisite of development. Most countries, at least, attempt 
to pretend that they act in accordance with human rights norms. 

The Vienna Declaration, 39 an outcome of the World Conference on 
Human Rights that took place in 1993, forged a consensus that human 
rights are universal, indivisible, interdependent and interrelated, 40 that 
human rights are a legitimate concern of the international community, 41 
and that "human rights derive from the dignity and worth inherent in the 
human person." 42 The declaration even provides that "while develop- 
ment facilitates the enjoyment of all human rights, the lack of develop- 



individual rights must be supplemented by peoples' rights and that the satisfaction 
of economic, social and cultural rights is the pre-requisite for the enjoyment of civil 
and political rights. African countries have included their claims in the African 
Charter on Human and Peoples Rights, which includes not only rights but also 
duties and provides for the right to development, the right to peace and the right to 
a satisfactory environment favorable to development. See African Charter on 
Human and Peoples' Rights (Banjul Charter), June 27, 1981, OAU Doc. 
CAB/LEG/67/3 rev.5, reprinted in 21 l.L.M. 58 (1982). For an analysis of the 
African Charter on Human Rights, see J. Oloka-Onyango, "Beyond Rhetoric: 
Reinvigorating the Struggle for Economic and Social Rights in Africa," University 
of Minnesota Human Rights Library, available online at http://wwwl.umn. 
edu/humanrts/africa/Oloka-Onyango.html. 

The second challenge to individual rights has been launched by the economi- 
cally invigorated Asian countries. The "Asian concept of human rights" was offi- 
cially declared in the Bangkok Declaration on Human Rights, a preparatory 
document for the 1993 Vienna World Conference on Human Rights. Asian coun- 
tries, like their African counterparts, emphasize that while some rights are univer- 
sal, the western ideal of individual autonomy does not rime well with the Asian 
values that give priority to the community. See Bangkok Declaration on Human 
Rights, April 2, 1993,A/CONF. 157/ASRM/8. 

39 Vienna Declaration and Programme of Action, World Conference on Human 
Rights, June 25, 1993, U.N. Doc. A/CONF.157/24 (Part 1), at 20 (1993). 

•» Art.l. 

4t Art. 4. 

42 Preamble. 



Human Dignity as the Standard 25 

ment may not be invoked to justify the abridgement of internationally 
recognized human rights." 43 

The overall acceptance of human rights norms and the number and 
prestige of non-governmental organizations (NGOs) that monitor the 
implementation of human rights litigate even more for the placement of 
biodiversity protection under a human rights umbrella. Governments 
have used environmental conservation or, put it differently, eco-devel- 
opment as a rationalization for engaging in egregious human rights vio- 
lations. Notions dear to preservationists such as that of "pristine 
wilderness areas" have been used to expel people from their land and 
condemn them to more poverty. The anti-humanistic intonations of cer- 
tain preservationist discourse are captured by governments and used to 
oppress populations under the pretext of strict enforcement of environ- 
mental law. 

Today only a handful of human rights groups have paid attention to 
human rights violations perpetrated for the purposes of eco-develop- 
ment. This is because it seems paradoxical that environmental goals will 
be used to suppress human rights. Placing biodiversity protection under 
the human rights regime will put in place the checks and balances 
needed so that eco-development like all other types of development is 
not pursued at the expense of human dignity and human rights. (For a 
list of human rights relevant to biodiversity protection, see Table 3.) 

2.2. Emphasis on Local Management Standards and 
Incentive Mechanisms 

Human dignity, as expressed in the human rights instruments, is a nec- 
essary but not a sufficient standard for biodiversity protection. 
Additional management guidelines must be established for agriculture, 
forest clearance and all consumptive uses of diversity resources. And 
the goal of these guidelines must be the management and not the preser- 
vation of biodiversity resources. Cultivation and grazing must be per- 
formed in a fashion that allows for soil recovery. Logging also should 
be performed when certain guidelines and locally established standards 
are respected and enforced. 

« Art. 10. 



26 Biodiversity and Human Rights 



Table 3: Human Rights Relevant for Biodiversity Management 

• Right to life, liberty and the security of person 1 

• Right not to be subjected to torture, or to cruel, inhuman and degrading 
punishment 2 

• Right not to be subjected to arbitrary arrest, detention and exile 3 

• Right for effective remedies before national tribunals 4 

• Right to self-determination 5 

• Right to an adequate standard of living, including adequate food, clothing 
and housing 6 

1 Art. 3, Universal Declaration ot Human Rights; arts. 6 and 9, International Covenant on Civil and 
Political Rights; art. 4, African Charter on Human and Peoples' Rights. 

2 Art. 5, Universal Declaration of Human Rights; art. 7, Covenant on Civil and Political Rights; art. 5, 
African Charter on Human and Peoples' Rights. 

3 Art. 7, Universal Declaration of Human Rights; art. 9, Covenant on Civil and Political Rights; art. 6, 
African Charter on Human and Peoples' Rights. 

4 Art. 8, Universal Declaration of Human Rights; arts. 9 and 14, Covenant on Civil and Political 
Rights; art. 7, African Charter on Human and Peoples' Rights. 

5 Art. 1, Covenant on Civil and Political Rights; art. 1, Covenant on Economic, Social and Cultural 
Rights; art. 20, African Charter on Human and Peoples' Rights. 

6 Art. 1 1 , Covenant on Economic, Social and Cultural Rights; art. 22, African Charter on Human 
and Peoples' Rights. 



In many cases management standards are difficult to establish and 
difficult to enforce. Often the standards are established by national and 
international institutions without taking into account local conditions 
and preferences. 44 

This study supports the development of standards for the protection 
of biodiversity. However, standards that prescribe the specific details of 
the management of a resource must be established locally, and, if this is 
possible, by the smallest cohesive unit that would have to apply the stan- 
dards. National governments and international institutions could remain 
active in the designation of appropriate guidelines and recommenda- 
tions for management. In addition, national and global institutions must 
provide incentives that would motivate people to endorse the guidelines 
and translate them into standards at the local level. 



See supra Section 1.2. 



Human Dignity as the Standard 27 

Many studies have proposed incentives, as opposed to top-down reg- 
ulation/strict enforcement, as a means for the successful biodiversity 
management in the developing world. Incentives, though, are presented 
mostly in terms of the profits that can be extracted from specific non- 
consumptive activities such as bioprospecting, extractive reserves and 
ecotourism. It is only recently that the incentives proposed trumpet own- 
ership of and responsibility for a resource as an effective incentive for 
the protection of the resource. 45 This study maintains that the most suc- 
cessful incentive measures are based on the control of the resource by 
the local people and emanate from secure land tenure. 

As the benefits derived from the non-consumptive uses of biodiver- 
sity are falling behind expectations, 46 incentives must be designed to take 
into account the satisfaction of the immediate needs of people. Such 
incentives must incorporate the desire of people to assume control over 
their own affairs and develop a sort of growth that can be sustained 
both — in the short-term and in the long-term — and can bring significant 
wealth. To become supportive of biodiversity protection, people must 
acquire eventually control over the resources and be allowed to make 
decisions about the management of those resources under minimum 
guidelines prescribed internationally/nationally and applied locally. 

International law cannot provide incentives based on resource con- 
trol and secure land tenure. This type of incentives must be mandated 
nationally and take effect locally. However, international law can sup- 
port the adoption of such incentives by removing the restrictions/prohi- 
bitions on the trade in wildlife species. The removal of barriers to 
international trade in wildlife could give governments the impetus they 
need to resuscitate and support local management systems. 

Allowing people to get control over resources whose value is deter- 
mined by free trade would do much more for poverty alleviation and 
biodiversity protection than other policies that rely on heavy-handed 
government intervention or other special interests' guidance. Secure land 
tenure, privatization and appropriation of wildlife supported by the free 
trade of wildlife resources could provide the incentives needed for the 



45 See Chapter 2, Section 4. 

46 See Chapter 2, Section 3. 



28 Biodiversity and Human Rights 

creative use of biodiversity. Local resource control and free trade, under 
local management standards that incorporate human dignity values, 
could protect many of the species that are considered endangered today. 

2.3. Free Trade in Wildlife as an Incentive for Local 
Management 

Free trade in wildlife must be supported by international institutions as 
a means to encourage local wildlife management systems in develop- 
ing countries. Freeing the trade in wildlife, though, is not as simple as 
it seems because of the vicious cycle in which this trade is trapped. 
Restrictions and prohibitions have perpetuated black markets that, in 
turn, have led to species loss. On one hand, lifting restrictions and pro- 
hibitions without supporting local grass root institutions willing to man- 
age wildlife as a source of income will lead to even more mismanaged 
slaughtering. On the other hand, creating local management systems 
presupposes the lifting of restrictions so that there is real proof that there 
are benefits from sound wildlife management. 

As will be seen below, some countries have experimented success- 
fully with the creation of local wildlife management systems, and these 
countries have attempted to overhaul some the restrictions/prohibitions 
imposed by the CITES Convention. 47 These countries maintain that 
wildlife trade regulations as mandated by the CITES Convention are a 
rudimentary way to manage wildlife since the deep causes of wildlife 
conversion cannot really be resolved through trade measures. 

This study proposes that, instead of trade prohibitions and restric- 
tions, international biodiversity management must be based on the free 
trade in species and their products supported by the appropriate local 
management that includes human dignity and human rights values. 



47 Critique submitted by Botswana, Malawi and Zimbabwe to the Secretariat 
and the Standing Committee of CITES in compliance with Notification No. 951 to 
the Parties of the "Study on How to Improve the Effectiveness of CITES" (1996), 
available online at http://wildnetafrica.co.za/cites/info/iss_OOJ_citescritique.html. 



Human Dignity as the Standard 29 

2.4. Transnational Landscapes/International 
Conservancies 

Even if biodiversity is squeezed into state boundaries, it is affected by 
global phenomena such as climate change that are beyond just a state's 
control. What happens in a diverse forest within one state can affect an 
adjacent forest in a neighboring state. Policies enacted in one state that 
are prohibitive of certain uses of biodiversity, simply shift the players to 
other states with more tolerant legislation. Efforts of states to ban access 
to resources within their jurisdiction can be frustrated easily if the state 
next to them allows access to the same resources. Overall management 
is less than optimal when the same ecosystem is managed by different 
states and institutions in accordance with different rules. Such man- 
agement is bound to create duplication of effort and conflicting man- 
agement policies. 48 

The matter of fact is that most of biodiversity is shared regionally or 
internationally 49 and that most of the forests of the developed and devel- 
oping world often transcend national borders making strict concentra- 
tion on national management futile. Regional ecosystem management 
then makes much more sense. The possibilities of wildlife transfers across 
national frontiers and of transboundary park development demonstrate 
that management should not stop at national borders. Transfrontier man- 
agement projects, it is proposed here, should become the norm rather 
than the exception of biodiversity protection. In principle there is no rea- 
son for countries not to cooperate in the management of linked biodi- 
versity areas. Such cooperation is taking place in Europe and in Latin 
America and it is currently attempted in Africa. 50 



48 Clare Shine, "Legal Mechanisms to Strengthen and Safeguard Trans- 
boundary Protected Areas," in Parks for Peace, supra note 24, at 37. 

49 Joseph Henry Vogel, Bioprospecting 3 (final report commissioned by the 
Biodiversity Support Program on behalf of the Inter-American Commission on 
Biodiversity and Sustainable Development in preparation for the Summit of the 
Americas on Sustainable Development, Santa Cruz de la Sierra, Bolivia, December 
6-8, 1996). 

50 See supra Section 1 .4. 



30 Biodiversity and Human Rights 

The cooperative management of transnational areas presents many 
advantages. 51 This study favors transnational management for another 
reason. Transnational management can become a way to introduce more 
checks and balances and more transparency in the management of 
resources. Chances are that some of the countries involved in the co-man- 
agement of a resource will not be as willing to oppress their populations 
and may exert a positive influence on others. Also human rights viola- 
tions in transnational parks are likely to gain more publicity making 
transnational management a deterrent to the assaults on human dignity. 

Despite these advantages, the joint management of common areas 
has not proceeded as quickly and smoothly as one would expect because 
of the obstacles involved. Such obstacles have to do with: 

• nationalism, isolationism and different political ideologies 
among the states who share a resource; 

different laws with regard to the management of an area; 

• religious differences, cultural differences and language barriers; 

• different levels of political commitment creating a "weaker part- 
ner-dominant partner" situation; 

• different degrees of discretion and authority granted to the agen- 
cies that manage the resource. 52 

Overall the management of transnational areas will only be nominal 
and will be paralyzed by indecision and inaction without the existence of 
common goals and leadership that would help surpass these obstacles. 

While transnational management of transboundary resources is not 
easy, this study maintains it is worthwhile for countries to invest some 
of their resources in achieving such management. In addition to man- 
aging biodiversity more efficiently and effectively, transnational land- 



51 Larry Hamilton, "Guidelines for Effective Transboundary Cooperation: 
Philosophy and Best Practices," in Parks for Peace, supra note 24, at 27 (the advan- 
tages of transfrontier management of protected areas include: reduction of the risk 
of biodiversity conversion in a well managed contiguous protected area; better 
implementation of management measures because of the joint efforts involved; bet- 
ter and cheaper marketing of the area because of the economies of scale involved 
(e.g., common maps, brochures, logos etc); improved staff morale). 

52 Id. 



Human Dignity as the Standard 31 

scapes may help bring harmonization and peace in many of the troubled 
areas of the world. 

To emphasize that transnational management must benefit the peo- 
ple who inhabit transboundary areas, this study proposes to replace the 
term "transnational protected areas" with the term "transnational land- 
scapes." This is because of the ugly connotations associated with the 
term "protected area." 53 And because the term "transnational landscape" 
can help lock in the idea that human use/habitation and biodiversity pro- 
tection are inextricably linked. 

Under an optimistic scenario about the course of privatization of 
wildlife management, 54 transnational landscapes may eventually be 
transformed into international conservancies — a group of properties 
and wildlife resources managed communally by private landowners or 
communities across national borders. As long as this transition from 
public wildlife management to private wildlife management is com- 
pleted with the full respect of international human rights, it is a welcome 
addition to the arsenal of means to improve the lives of people and pro- 
tect biodiversity. 

2.5. Regulated Free Access to Germplasm Resources 
and International Gene Bank Development 

The development of international gene banks makes sense for three 
reasons: 

• The collection and preservation of seeds from all over the world 
is by nature a transnational activity that involves many states and 
has to be undertaken by an institution that enjoys legitimacy in 
international circles; 



53 During a Parks for Peace Conference delegates from Southern Africa asked 
to replace the term "protected areas" with the term "trans-frontier conservation 
areas." The request came because of the "reputation which protected areas have had 
in the past in the region, as places from which local people are excluded and unable 
to gain any benefit from natural resources to which they have had traditional 
access." "Preface," in Parks for Peace, supra note 24, at v. 

54 See Chapter 2, Section 4. 



32 Biodiversity and Human Rights 

• The collection and preservation of seeds is an expensive activ- 
ity that can benefit from the economies of scale put together by 
many states; 

• International gene banks are more institutionally stable than national 
gene banks since they depend on the collective will of states rather 
than the wishes and constraints of a single government. 

Gene banks that contain seeds from all over the world are evidence 
that certain aspects of biodiversity protection can be managed best inter- 
nationally. These seeds were preserved under a free access regime that 
allowed gene banks to collect them and preserve them in their collec- 
tions. Without their collection from all over the world and their preser- 
vation in international, regional and national gene banks many of today's 
seeds would be extinct. 

Gene bank development could in the future benefit from the eco- 
nomies of scale put together by national governments and international 
institutions to collect and preserve seeds. Seed collection and preserva- 
tion are expensive and are bound to require even more resources as new 
technologies are put in place for the preservation and identification of 
resources. 

Moreover, international gene banks, whose existence and develop- 
ment are based on the collective will of many governments, are more 
institutionally resilient than national gene banks that are constrained by 
the economic resources of just one country. 

Despite the evidence that some aspects of biodiversity management 
make more sense on a regional or global basis, the movement today is 
more toward national management and control over biodiversity 
resources. As mentioned before, states — under the assumption that their 
biodiversity resources contain tremendous wealth — are zealous to pre- 
clude others from using those resources without at least paying first. 
While such strategies may prove profitable for known resources not yet 
preserved in national and international gene banks, they could backfire 
for resources of unknown use. Such resources will be wasted since the 
hefty entry fees will preclude experimentation with them. Companies 
are not willing to pay for unknown seeds lying in rainforests. 55 Attempts 



See Chapter 2, Section 3.1. 



Human Dignity as the Standard 33 

of states to prevent companies from asserting intellectual property rights 
over modified biodiversity resources may discourage companies to 
experiment with the resources. 

As will be analyzed in Chapter 4, the prevalent nationalism and bilat- 
eralism that threaten the free exchange and transfer of seeds have been 
tempered recently by the adoption of a Multilateral System for the trans- 
fer of a restricted number of resources for food and agriculture. This is 
the first attempt to put in place an international regulatory system the 
purpose of which is to diminish the bureaucracy entailed in the myriad 
bilateral agreements that could be put in place for the transfer of plant 
genetic resources. Whether this system will become successful depends 
on the number and prestige of states that subscribe to it and the number 
of resources it covers. At this point the system covers only a small num- 
ber of resources, and two major contributors to the negotiations of the 
treaty that established the system — the United States and Japan — refuse 
to subscribe to it because of concerns about the protection of intellec- 
tual property rights. The possibility of assertion of intellectual property 
rights over plant genetic resources was one of the most contentious 
issues during the negotiations of the Multilateral System since devel- 
oping countries tried to establish rules that curtail the ability to assert 
intellectual property rights over plant genetic resources. Developing 
countries succeeded in establishing a mechanism that would help chan- 
nel some of the gains from the commercialization of germplasm resources 
back to the farmers of the developing world who were the first to pinpoint 
to the right use of the resource. 

A mechanism for the compensation of the people of the developing 
world for their contributions to biodiversity must help restore percep- 
tions of equity and help legitimize a comprehensive system of regulated 
free access to resources. A compensation mechanism must help assuage 
many of the confrontations around the assertion of intellectual property 
rights over the modification of germplasm resources and could imbue a 
renewed sense of trust in the North-South relationships. 

3. THE ASSUMPTIONS BEHIND THE POLICIES 

The current policies on biodiversity protection are based on assump- 
tions about what constitutes biodiversity and how to best manage it. 



34 Biodiversity and Human Rights 

These assumptions provide a description of biodiversity as something 
static that needs to be preserved or conserved rather than as something 
dynamic that needs to be managed to achieve desirable social goals. 
Also most of the policies are based on the presumption that biodiver- 
sity needs to be protected because it has value above and beyond the 
servitude of human needs. 

While these assumptions have been challenged by ecologists and 
anthropologists, who view biodiversity and humanity as inexorably 
linked, they still permeate many of the international biodiversity pro- 
tection policies. Chapter 3 analyzes in detail the international policies 
that have been influenced by the static view of biodiversity protection. 

3.1. Competing Definitions 

3.1 .1 . Biodiversity as Ecosystem Preservation/ Biodiversity 
Loss as Extinction 

Biodiversity is a term that has been developed by conservation biolo- 
gists and is more or less equivalent to the terms "nature" and "wilder- 
ness" used in the past for the purposes of conservation. "Nature" is too 
generic a term to describe rich in diversity ecosystems and "wilderness" 
has been affiliated with the obsession of the white world to save natural 
areas. Biodiversity, on the other hand, is a fresh term that sounds scien- 
tific and could inspire public support. Conservation biologists have used 
the term to advocate the preservation of intact ecosystems and biologi- 
cal processes. 56 

When biodiversity is discussed the first image that comes to mind are 
the evergreen tropical forests. And there has been a crusade to protect 
these forests intact from modern development. Any land alteration that 
diminishes the primary forest is viewed as deforestation and biodiver- 
sity destruction. Many environmentalists believe that any forest removal 
will cause soil erosion, desertification and flooding and therefore they 
advocate the preservation of forests as they are. 57 



56 See David Takacs, The Idea of Biodiversity, supra note 32, at 35. 

57 For an argument against this position, see L.S. Hamilton & A.J. Pearce, "Soil 
and Water Impact of Deforestation," in Deforestation: Social Dynamics in 



Human Dignity as the Standard 35 

The definition of biodiversity as something static that needs to be pre- 
served intact is also obvious from the methods that have been used to 
"save biodiversity." As will be seen in Chapter 2, protected areas from 
which people are excluded are considered the ideal way to save biodi- 
versity. Biodiversity loss has been attributed to human habitation and 
industrialism. As long as human habitation and industrialism persist bio- 
diversity loss is inevitable. Any intervention, and particularly human 
intervention, is considered destruction of biodiversity. In short, the pre- 
vailing position is that biodiversity is something that needs to be pre- 
served "as is" and must not be disturbed by humans. 

Because biodiversity must be preserved as it is, any loss of biodiver- 
sity has been defined as extinction. The reported extinction rates are 
based on the species-area relationship. The species-area relationship 58 
stands for the proposition that the number of species depends on the 
habitat available. As the habitat is shrinking, species become extinct. It 
has been projected that if the present rates of habitat destruction con- 
tinue, the number of species will be reduced by at least one-half. This 
means that hundreds of thousands of species and, if insects are counted, 
millions of species are bound to become extinct. 59 In tropical forests 
extinctions are forecasted to be more severe than the extinctions in tem- 
perate regions, since the species in tropical regions are more localized. 
Some claim that the current biodiversity loss may be approaching the 



Watersheds and Mountain Ecosystems, supra note 13, at 75, 83. See also L.S. 
Hamilton, "Forestry and Watershed Management," in Deforestation, id. at 99, 119. 

58 The species-area relationship is based on the theory of island biogeography. 
The theory of island biogeography is based on the principle that the larger the 
island, the larger the population size for any particular species and the smaller the 
chances that species will become extinct. This theory has been extrapolated to apply 
to other ecosystems. See D. Simberloff, "Do Species-Area Curves Predict 
Extinctions in Fragmented Forest?" in Tropical Deforestation and Species 
Extinction 75, 76 (T.C. Whitmore & J.A.Sayer eds., 1992). For a brief and com- 
prehensive account of the island biogeography theory and its critics, see Graig L. 
Shafer, Nature Reserves: Island Theory and Conservation in Practice 1 1-33 (1990). 

59 For a summary of the different estimates of biodiversity loss, see Ariel E. 
Lugo, "Estimating Reductions in Diversity of Tropical Forest Species," in 
Biodiversity 58, 58-61 (E.O. Wilson ed„ 1988). 



36 Biodiversity and Human Rights 

massive losses triggered by natural disasters at the end of the Paleozoic 
and Mesozoic eras. 60 



3.1 .2. Biodiversity as Ecosystem Evolution/Biodiversity Loss 
as Conversion 

For many biologists, though, it is impossible to preserve intact ecosys- 
tems since extinction is a necessary part of the evolution. 61 Most ecosys- 
tems are not fragile to the point that any disturbance, human or natural, 
will cause ecosystem destruction and desertification. 62 Many ecosys- 
tems are resilient and thrive on "disturbance." Rain, floods, fire, winds 
and storms viewed through the human eye as disasters are part of 
ecosystem regulation. 63 



60 See E.O. Wilson, "The Current State of Biological Diversity," in Biodiversity, 
id. at 3; See also Norman Myers, "Tropical Forests and their Species: Going, Going 
. . . ?" in Biodiversity, id. at 28; Christoph Imboden, "Threatened Species: Birds as 
Indicators of Sustainability," in Conserving Europe's Natural Heritage 61, 62 
(Graham Bennett ed., 1994); Robert M. May et al., "Assessing Extinction Rates," 
in Extinction Rates 1,16 (John H. Lawton & Robert M. May eds., 1995); D. 
Simberloff, supra note 58; Beverly Peterson Stearns & Stephen C. Stearns, 
Watching from the Edge of Extinction (2000). 

61 David M. Raup, "Diversity Crises in the Geological Past," in Biodiversity, 
supra note 59, at 5 1, 57 (species extinction is also a natural phenomenon. The aver- 
age duration of species is less than 10 million years and the biological composition 
of the earth has changed many times. In fact extinction is a necessary part of the 
evolution. The fact that extinction is an essential component of the evolution should 
not give license to massively destroy ecosystems. However, it may shed perceptions 
that all ecosystem manipulation is equivalent to destruction and that biodiversity 
loss is necessarily irreversible). 

62 Some ecologists debate whether we can actually talk about "ecosystems." 
According to one view, nature is comprised of a community of species that are orga- 
nized together as a system. According to an opposing view, nature is comprised of 
collections of species whose habitats happen to coincide. See David M. Raup, 
Extinction: Bad Genes or Bad Luck? ( 1 99 1 ). 

63 There are many ecosystems that are dependent on disturbances such as the 
rainforest. These ecosystems cannot survive without those disturbances. See 
Richard J. Vogl, "The Ecological Factors that Produce Perturbation-Dependent 
Ecosystems," in The Recovery Process in Damaged Ecosystems 63 (John Cairns 
Jr. ed., 1980). 



Human Dignity as the Standard 37 

Humans have played a crucial role in enhancing species diversity. 64 
It is hard to find today ecosystems that have not been affected by human 
actions. For instance, the Amazon is not the pristine rainforest it has 
been projected to be. 65 It has been slashed-and-burned for many cen- 
turies. When primary forests are removed secondary forests grow in 
their place. In many developed countries biodiversity resides in sec- 
ondary forests. 

Of course, not all human actions are favorable to diversity. Agri- 
cultural areas, for instance, are not as diverse as forested areas but are 
the most productive. 06 Humans have played an important role in diver- 
sifying or simplifying ecosystems according to their needs. A dynamic 
definition of diversity involves a view of diversity as ecosystem evolu- 
tion. (For the dynamic definition of biodiversity as compared with the 
current definition, see figure 2.) And contributions to such evolution are 
both human and natural. 

Accepting human intervention as part of ecosystem evolution gives 
a different spin to the allegations of biodiversity loss. First of all, even 
commentators that predict extensive biodiversity loss concede that the 
extent of biodiversity loss is dubious since the magnitude of biodiver- 
sity remains unknown. 67 Estimates of severe biodiversity loss consis- 
tently neglect mitigating factors such as the role of secondary forests as 
species refugia and the role of disturbance in maintaining species 



64 Darrell Addison Posey, "Interpreting and Applying the 'Reality' of 
Indigenous Concepts," in Conservation of Neotropical Forests 2 1 , 28-29 (Kent H. 
Redford & Christine Padoch eds., 1992). See also William Balee, "People of the 
Fallow," in Conservation of Neotropical Forests, id. at 35. 

65 Jean-Louis Guillaumet, "Tropical Humid Forest Food Plants and Their 
Domestication," in People and Food 55 (UNESCO Man & The Biosphere Series, 
CM. Hladik et al. ed., 1993); Doyle McKey et al., "Evolution and History in 
Tropical Forests in Relation to Food Availability," in People and Food, id. at 17. 

66 See, e.g., Peter Herman May, A Modern Tragedy of the Non-Commons (dis- 
sertation thesis at Cornell University, 1986); G. Carlteton Ray, "Ecological Diversity 
in Coastal Zones and Oceans," in Biodiversity, supra note 59, at 36, 42. 

67 E.O. Wilson, "The Current State of Biological Diversity," in Biodiversity, 
id. at 3, 13. 



38 Biodiversity and Human Rights 



Figure 2: Definitions of Biodiversity 



Prevailing 
Definition 
Biodiversity as 
Ecosystem 
Preservation/ 
Biodiversity 
Loss as 
Extinction 



The Human 
Contribution to 
Biodiversity 



Proposed 
Definition 
Biodiversity as 
Ecosystem 
Evolution/ 
Biodiversity 
Loss as 
Conversion 



richness. 68 In addition, as mentioned above, human intervention is 
not synonymous with ecosystem degradation but with ecosystem 
homogenization. The decline in biodiversity is often a process of con- 
version from a variety of species to a smaller pool of species deemed 
worthy of propagation. 69 The history of agriculture and plantations 
involves exactly this process. 



3.2. Competing Approaches to Managing Biodiversity 

3.2.1 . Avoid Management at All Costs 

Ecosystem management is often criticized as an abnormal intrusion of 
humans into the workings of nature. In some environmental circles man- 
agement is associated with consumptive uses: wildlife management for 
hunting, forest management for timber production, and range manage- 
ment for grazing. Under this view, ecosystem management has nothing 
to do with the preservation of "pristine ecosystems." And managing nat- 
ural reserves is equivalent to treating nature like a zoo. 70 



68 Lugo, supra note 59, at 63-64. 

69 Timothy Swanson, "The International Regulation of Biodiversity Decline," 
in Biodiversity Loss: Economic and Ecological Issues 225, 226-27 (Charles 
Perringsed., 1995). 

70 Frederic H. Wagner et a!., Wildlife Policies in the U.S. National Parks 26 



Human Dignity as the Standard 39 

Many North American policies are based on the ideal that the natural 
environment can be preserved in a pristine state — free of human 
impacts. American parks were first established for recreational purposes 
but they increasingly evolved into areas to be secluded from humans. 
The goal of national park policy has been to maintain the parks " in the 
condition that prevailed when the area was first visited by the white 
man(,)" in a condition that represents a "vignette of primitive 
America." 71 This passage from Leopold is often cited to support the 
proposition that ideally parks must be natural areas isolated from human 
activities and that the essence of the wilderness is the absence of any 
sort of malevolent or benevolent human interaction. 

The obsession to preserve pristine areas has detracted attention from 
areas in need of restoration. Restoration is ignored in international con- 
servation policies because it cannot reproduce the "pristine" original 
ecosystem. Often a degraded ecosystem is viewed as a technical 
problem — not a conservation issue. While attention is focused on rich- 
biodiversity spots, ecologically jeopardized regions with degraded and 
unproductive soils are ignored even if restoring degraded areas can 
relieve pressure from areas deemed worthy of protection. 

3.2.2. Management as a Necessity 

Pristine areas, unaffected by humans, rarely exist making ecosystem 
management necessary in most protected areas. Active management is 
today pursued in many national parks in the United States, albeit 
ambivalently, and with the predisposition that it is not quite the right 
approach. 72 

In Europe, on the contrary, emphasis is placed on "landscapes" rather 
than "nature reserves." Landscapes cannot blossom without human 
intervention. Landscape management is based on the realization that the 



(1995); See also Richard West Sellars, Preserving Nature in National Parks: A 
History (1999). 

71 Wagner, id. 

72 Id. 



40 Biodiversity and Human Rights 

strict separation of the natural environment from the human factor is not 
possible. 73 

Protected areas are today patches of land surrounded by many uses. 
If they are not managed intensively they will deteriorate. Management 
may involve restoring severely depressed species; adding fertilizer to 
enhance degraded soil; or eliminating species that have grown too much 
jeopardizing the survival of other species. 74 The ultimate goal of man- 
agement is not to freeze the ecosystem in its original state, but to sup- 
port its evolution within the framework of larger societal goals. (For the 
proposed approach to ecosystem management versus the current 
approach, see Table 4.) 

Active management of protected areas is often opposed because 
there is no perfect knowledge on how ecosystems function. If knowl- 
edge is incomplete management decisions will not always be success- 
ful. But lack of perfect knowledge should not lead to inaction. Some 
management decisions are easier to make, for instance, when because 
of hunting quotas a species has proliferated to such an extent that it is 
now becoming a threat to other species and the surrounding popula- 
tion. In this case resumption of hunting or reintroduction of a predator 
may be necessary. 75 Other management decisions will be more com- 
plex, for example, those pertaining to habitat manipulation and species 



73 Zev Naveh, "Biodiversity and Landscape Management," in Biodiversity and 
Landscapes: A Paradox for Humanity 187 (Ke Chung Kim & Robert D. Weaver 
eds., 1994). 

74 See Wagner, supra note 70, at 1 7 1-78. There is a significant amount of lit- 
erature on wildlife management, see James H. Shaw, Introduction to Wildlife 
Management (1985); Graeme Caughley & Anthony R.E. Sinclair, Wildlife Ecology 
and Management ( 1 994); Living with Wildlife: Resource Management with Local 
Participation in Africa (World Bank Technical Paper, Agnes Kiss ed., 1 990); R. 
Sukumar, The Asian Elephant: Ecology and Management (1989); Michael E. 
Soule, Bruce A. Wilcox & Claire Holtby, "Benign Neglect: A Model of Faunal 
Collapse in the Game Reserves of East Africa," in 15 Biological Conservation 
(No. 4) 259 (1979). 

75 Conservation groups have an aversion for culling animals even if culling 
is necessary to prevent degradation of nature reserves. Hunting is not viewed as 
an ideal way to control animal populations. See Living with Wildlife, supra note 
74, at 23. 



Human Dignity as the Standard 41 



Table 4: Biodiversity Management 



Prevalent Approach Proposed Approach 

• Emphasis on Nature Reserves • Emphasis on Landscapes 

• Minimization of Management of • Intensive Management including 
Protected Areas Restoration and Gene Banks 



reestablishment. 76 Transfers of plants and animals across borders should 
take place with caution, because the implications of the transfers to new 
ecosystems are not known. 77 

As protected areas become fewer and fewer, ecosystem management 
will evolve into restorative management. Today many ecosystems exist 
because of restorative efforts. While restoration can rarely bring back 
"original" ecosystems, it is instrumental in helping to avert soil erosion 
and in protecting the productivity of ecosystems. Edward Wilson has 
declared "the next century will ... be the era of restoration in ecology." 78 
And Soule believes that "it is apparent that the emphasis on conserva- 
tion biology will gradually shift from the protection of quasi-natural 
habitat fragments (. . .) to the opportunistic construction of artificially 
diverse landscapes." 79 Eventually the concept of "artificial nature" will 
become the future expected standard of biodiversity protection. 80 

Gene banks that have stored seeds for years are another example of 
biodiversity management. 81 The purpose of gene banks has been to col- 
lect and preserve seeds from all over the world. Gene banks are inter- 



76 See, e.g., H. Wagner et al., midlife Policies in the U.S. National Parks 178 
(1995). See also James H. Shaw, Introduction to Midlife Management (1985); Graeme 
Gaughley & Anthony R.E. Sinclair, Midlife Ecology and Management (1994). 

77 Soule et al., supra note 74, at 270 (1979). See "An Elephantine Problem," 
Economist, May 30, 1996, at 75 (young elephants who have moved across national 
borders without the rest of the family become "rogue elephants" lacking "social 
graces" and having "serious attitude problems"). 

78 Takacs, supra note 56, at 205. 

79 Id. 

80 See Chapter 2, Section 5. 

81 See Chapter 2, Section 6. 



42 Biodiversity and Human Rights 

national, regional or national institutions that contain seeds mostly use- 
ful for agriculture. It is estimated that gene banks must contain most of 
the biodiversity useful for human purposes. 82 Gene banks have been 
instrumental in revitalizing the agricultural sector of countries after peri- 
ods of war by re-introducing seeds that have disappeared due to war- 
related atrocities. 

3.3. Competing Rationales for the Protection of 
Biodiversity 

Different arguments have been proposed for the protection of biodiver- 
sity. Utilitarians claim that biodiversity must be protected because it 
brings spiritual renewal and economic profits. According to some ecol- 
ogists, biodiversity is worth protecting because it has value by itself 
independent of whether it is useful for humans. This study proposes that 
biodiversity deserves to be protected only if it serves the goals of human 
dignity. {See Figure 3.) 

3.3.1 Prevailing Rationale: Protecting Biodiversity for 
Biodiversity 

The Intrinsic Value of Biodiversity and Aesthetic Arguments 

The ecologists who support the protection of biodiversity for its intrin- 
sic value argue that the interests of nature and ecosystems override the 
interests of humans. According to these ecologists, the current social 
paradigm has its roots in the Judeo-Christian tradition which views man 
as the sole purpose of creation. They propose a change: reconsidering 
life under an ecological-ethical perspective and re-inhabiting the land 
with hunting, gathering and gardening. 83 



82 Id. 

83 This approach is often called Deep Ecology. Deep Ecology makes no efforts 
to disguise its basic tenet that all creation — human beings, animal, plants — must 
be put on an equal scale when deciding issues of preservation. See, e.g., Lawrence 
E. Johnson, A Morally Deep World: An Essay on Moral Significance and 
Environmental Ethics ( 1 993 ). 



Human Dignity as the Standard 43 



Figure 3: Rationale for the Protection of Biodiversity 



Prevailing Rationale 



Proposed Rationale 




The Causes of 

Biodiversity 

Conversion 




It is difficult to argue with this view — since it comes from a philo- 
sophical perspective on life that is against the progress in technology 
and industrialization as we experience it today. It is tempting to point 
out, though, that the interests of nature are unknown to people. Nature 
contains formidable sources of creation and destruction and what 
humans conceive as destruction is oftentimes the beginning of creation. 
Earthquakes, volcanoes, and the weather can alter ecosystems. Humans 
can do the same. From "nature's perspective" there is no reason to pre- 
fer the original ecosystem over what replaces it. Only by attaching val- 
ues, a human preoccupation, it can be determined which ecosystem is 
preferable. 84 

Other ecologists aspiring to appeal to a wider audience support the 
protection of diversity on aesthetic values. 85 Who could argue after all 
against the preservation of a beautiful rainforest? As it turns out, many 
of the farmers of the developing world. Presenting aesthetic arguments 
as a rationale for biodiversity protection is a symptom of what Willams 
James has called "a certain blindness in human beings." James' illus- 
tration of this blindness was his personal experience during a trip to the 
Appalachian region where he saw the forest being decimated and being 



84 For an eloquent rebuttal of the Deep Ecology Movement, see Luc Ferry, Le 
Nouve] Ordre Ecologique (1995). See also James J. Kay, "On the Nature of 
Ecological Integrity," in Ecological Integrity and the Management of Ecosystems 
(Stephen Woodley, James Kay & George Francis eds., 1990). 



Takacs, supra note 56, at 2 1 7-68. 



44 Biodiversity and Human Rights 

replaced by human constructs. James, after talking to the farmers, real- 
ized that "the clearing that was to [him] a mere ugly picture on the 
retina, was to them a symbol redolent with moral memories and sang a 
very paean of duty, struggle, and success." 86 

Economic Arguments: The Benefits from the Non-Consumptive 
Uses of Biodiversity 

Since aesthetic arguments cannot easily convince farmers, economic 
arguments have been used: huge profits have been promised from the 
plants, insects and animals residing in the forests. According to the util- 
itarians, unlocking the information residing in biodiversity resources 
will help cure diseases and increase food supply. Forest plants could 
have medicinal properties. Pristine forests could attract ecotourists. 

As will be analyzed in Chapter 2, the promised benefits from the non- 
consumptive uses have yet to materialize. Companies have not rushed 
into the forest to discover the latest life-saving seed. Most medicines 
and foods are prepared from well-known seeds and their varieties and 
not from unknown seeds lying in rainforests. Bioprospecting has not 
brought the wealth developing countries thought it would. 87 Extractivism 
has been sporadically successful, but it is unlikely that it would become 
the activity that will save the forests. 88 Ecotourism can be profitable in 
certain countries, for instance Africa, that have large and admirable 
mammals, but it will not necessarily be successful in all "pristine envi- 
ronments." 89 Most rainforests lack the large mammals that attract the 
tourists. Ecotourism also promotes the sort of "dependent development" 
that certain developing countries do not particularly favor. 

Overall, most economic arguments presented to the South have been 
used as a pretext to preserve biodiversity while the underlying rationale 



86 See William James, "On a Certain Blindness in Human Beings," in Talks to 
Teachers on Psychology 132,134 (Frederick Burkhardt & Fredson Bowers eds., 
1983). 

87 Chapter 2, Section 3.1. 

88 Chapter 2, Section 3.2. 

8 9 Chapter 2, Section 3.3. 



Human Dignity as the Standard 45 

remains — protection of biodiversity for its intrinsic value. 90 ; Propositions 
that non-consumptive uses of biodiversity are profitable to the point that 
they would exclude consumptive uses were not sustainable since their 
inception. 

Other arguments that have been advanced use the terminology of 
finance to describe the value of biodiversity. Terms such as portfolio 
effect, option value and exploration value, 91 though, still sound distant 
to many ears. The poor of the developing world want to see the profits 
here and now because they experience the acute problems of depriva- 
tion. Developed countries believe that they have already collected the 
biodiversity useful for human purposes and have preserved it in their 
gene banks. Developed countries believe that future inventions will con- 
centrate on the manipulation of these already discovered resources 
reducing the potential option value of unknown resources. Therefore, 
even the arguments about the future potential of biodiversity are unable 
to focus the international attention on biodiversity protection. 

Because most economic arguments stressing the benefits from 
non-consumptive uses and potential future value of biodiversity have 
limited appeal to the diverse interests involved, the protection of biodi- 
versity is anything but voluntary. As will be analyzed in Chapter 3, 
international environmental treaties do not always explicitly endorse 
the preservationist viewpoint — protection of biodiversity for biodi- 
versity's sake. On the contrary, they often purport to balance environ- 
mental and development considerations and to take into account social 
and economic needs. Despite the rhetoric, though, environmental 
treaties are often applied in line with the strict protection of biodiver- 



90 See Takacs, supra note 56, at 283. 

91 The "portfolio effect" refers to the fact that the more diversified assets a 
portfolio includes, the less risky the portfolio becomes. The same is true with bio- 
diversity, if biodiversity is high, the risk from sporadic extinctions will be lower. 
The option value refers to the fact that preserving resources is an option that may 
be "exercised" if certain resources become useful in the future. The exploration 
value refers to the fact that the exploration of new assets can lead to more discov- 
eries of unknown characteristics. See Timothy Swanson, "The Appropriation of 
Evolution's Values," in Intellectual Property Rights and Biodiversity Conservation 
141, 158-61 (Timothy M. Swanson ed., 1998). 



46 Biodiversity and Human Rights 

sity to the exclusion of any use. This is because, from the perspective 
of governments, biodiversity protection is another sort of development 
that must be pursued for the national interest no matter the costs 
incurred in terms of violation of human rights. Enforcement of biodi- 
versity protection laws comes, therefore, with the infliction of severe 
penalties and assaults on human dignity. 

3.3.2. Proposed Rationale: Human Dignity at the Core of 
Biodiversity Protection 

Human dignity is proposed here as the rationale and the basic standard 
for biodiversity protection. Most of the biodiversity resources are con- 
verted today because basic human needs — the satisfaction of which is 
essential to meet the human dignity standard — are neglected. People 
convert biodiversity-rich areas in their attempt to survive and "exercise" 
their right to food and shelter. This is obvious from the causes of biodi- 
versity conversion. The causes of biodiversity conversion suggest that 
the protection of biodiversity, in order to become successful, must be 
designed to bring wealth to the communities that live around areas rich 
in biodiversity. 

The Causes of Biodiversity Conversion 

Biodiversity conversion in the developing world has been blamed on 
timber companies and on the slash-and-burn agriculturists who take over 
deforested areas and turn them into agricultural fields. However, more 
sophisticated studies have demonstrated that it is appropriate to distin- 
guish between proximate threats and ultimate causes of biodiversity con- 
version. The proximate threats of biodiversity conversion include habitat 
destruction, deterioration and pollution while the ultimate causes of bio- 
diversity conversion have to do with land tenure issues, population 
changes, cultural factors and national policy failures. (See Table 5.) 92 
Overall, biodiversity conversion has been blamed on our "prevalent 



92 See Rowan Martin, "Biological Diversity: Diverging Views on its Status and 
Diverging Approaches to its Conservation," in Earth Report 2000 231 (Ronald 
Bailey ed., 2000). 



Human Dignity as the Standard 47 

approach to development" 93 which, at least at this point, is not forecasted 
to change. 

Logging as the Cause of Primary Forest Loss 

Logging may cause the destruction of many primary forests but it will 
not necessarily lead to deforestation and biodiversity reduction. After 
logging, if left undisturbed, primary forests are replaced by secondary 
forests that are also quite diverse. In general, the timber industry, while 
frequently responsible for the loss of primary forests, advocates forest 
conservation, in the form of secondary forests or plantations, and 
opposes the conversion of forests into agricultural fields. 

The timber industry is a profitable industry in developing countries. 94 
In Indonesia, for instance, exports of forest products account for 16 per- 
cent of the country's total export earnings only behind petroleum and 
gas in significance. 95 Attempting to halt primary forest removal, there- 
fore, is futile especially when all the other non-consumptive uses of 



93 The Root Causes of Biodiversity Loss 75 (Alexander Wood ed., 2000). 

94 Tropical timber trade has been an easy source of revenue in many develop- 
ing countries because of the tropical climate that makes possible shorter felling 
cycles and the low labor costs. See Jullian Evans, Plantation Forestry in the Tropics 
19 (1992); Emmanuel D' Silva & S. Appanah, Forestry Management for 
Sustainable Development 7 (Economic Development Institute of the World Bank 
ed., 1993); William Chia, "Indonesia Firms Raise $850m from Bonds," Business 
Times, March 6, 1 996, at 1 6. 

95 "Jaya Holdings in Deal with Hasko Group," Business Times, April 16, 1996, 
at 1 ; Pratap Chatterjee, "Logging Threat Looms over Birds' Paradise," Inter Press 
Service, Feb. 6, 1 996. Malaysia's timber sector is also extremely dynamic. See 
Stephen P. Loehnertz et al., "Hardwood Sawing Technology in Five Tropical 
Countries," 46(2) Forest Products Journal 5 1 ( Feb. 1 996). The timber sector of 
many Latin American countries is growing rapidly. The advantage of the climate 
has transformed Latin America from an importer of wood to an exporter of wood 
now accounting for 15 percent of the total world supply. See David Pilling, "Survey 
of World Forest Products," Financial Times, May 17, 1994, at III. Industrial timber 
products have been a significant source of revenue in Africa. However, many 
African countries have lost their market share to South-East Asia and developed 
countries. 



48 Biodiversity and Human Rights 



Table 5: The Causes of Biodiversity Conversion 



Obvious Indicators Deep Causes 

• Logging • Insecure Land Tenure 

• Industrialization • Poverty 

• Pollution • Population Pressures 



biodiversity do not bring nearly as much profit. 96 Countries view their 
forests as a renewable resource and will continue to clear forests as long 
as forest removal is profitable. 

Prohibiting tropical timber trade 97 or switching to plantations will not 
save the primary forests. Prohibiting tropical timber trade will remove 
the economic value of forests and strengthen arguments to convert them 
into agricultural fields. 98 Timber plantations also render primary forests 



% See Chapter 2, Section 3 . 

97 For more details on the proposal to ban tropical timber trade, see Chapter 
3, Section I . 

98 It is predicted that in the future most of the tropical wood will be consumed 
in the developing world and the South-to-North trade will be replaced with the 
South-to-South trade. Therefore a ban on imports from developing countries exe- 
cuted by the North will have little effect on consumption. Moreover a ban on trop- 
ical timber trade raises issues of fairness. See Edward Barbier & Michael Rauscher, 
"Policies to Control Tropical Deforestation: Trade Interventions versus Transfers," 
in Biodiversity Loss: Economic and Ecological Issues 260, 273-77 (Charles 
Perrings ed., 1995). See also E. Barbier et al., Main Report to the International 
Timber Organization, Economic Linkages Between Trade in Tropical Timber and 
Sustainable Management of Forests 30 (Final Report: ITTO Activity PCM Xl/4, 
International Institute for Environment and Development ed., 1993). See also 
Joanne C. Burgess, "Biodiversity Loss Through Tropical Deforestation: The Role 
of Timber Production and Trade," in Biodiversity Conservation 237 (C.A. Parings 
etal. eds., 1995). 

Wood from temperate forests is traded more extensively than tropical wood 
despite the fact that temperate forests present unique biodiversity. See Natalie 
Anger, "Redefining Diversity: Biologists Urge Look Beyond Rain Forests," N. Y. 
Times, Nov. 29, 1994, at CI (some scientists argue that many of the species in rain- 
forests are closely related. Therefore, rainforests may not be as diverse as it was 
indicated initially. Ecosystems such as deserts, temperate forests, and high altitude 
grasslands house less species but offer more genera, families or phyla). 



Human Dignity as the Standard 49 

useless and encourage their conversion to agricultural fields. Timber 
plantations are viewed by local people as a waste of agricultural land." 

The Conversion of Forests into Agricultural Lands 

While logging is the primary cause of forest removal, it does not cause 
permanent deforestation. Permanent deforestation can be triggered when 
forests denuded by loggers are invaded by landless peasants who slash- 
and-burn and clear the forest to make room for agriculture and grazing. 
Of course slash-and-burn agriculture is not always the cause of biodi- 
versity loss. 100 On the contrary, slash-and-burn agriculture many times 
enhances diversity and allows for forest regrowth. The problem is that 
today it is applied too intensively to allow for the recovery of forest 
ecosystems 101 though it is still considered more environmentally sound 
than mechanized farming and pasture development. 102 



99 See Elaine Morrison & Stephen M.J. Bass, "What About People?" in 
Plantation Politics 92 (Caroline Sargent & Stephen Bass eds., 1992); Philip Hirsch, 
"Forests, Forest Reserve and Forest Land in Thailand," 156 The Geographical 
Journal 1 66, 1 70 ( 1 990); See also Gerald F. Murray, "The Wood Tree as a Peasant 
Cash-Crop: An Anthropological Study for the Domestication of Energy," in Whose 
Trees? Proprietary Dimensions of Forestry 2 1 5, 2 1 7 (Louise Fortmann & John W. 
Bruce eds., 1988). 

100 Olive Mendelsohn & Upendra Baxi, The Rights of Subordinated Peoples 23 
(1994). 

101 Peter Dorner & William C. Thiesenhusen, Land Tenure and Deforestation 
15 (United Nations Research Institute for Development ed., 1992). In Indonesia 
shirting cultivation covers an area of about 1 1 million hectares and is practiced by 
1.2 million households or about six million people. See Theodore Panayotou & 
Somthawin Sungsuwan, An Econometric Study of the Causes of Tropical 
Deforestation 6 (Harvard Institute for International Development, Discussion Paper 
No. 284, March 1989). In Sumatra and Kalimatan, areas under extensive forest 
cover are intensively slashed and burned, see Edy Brotoisworo, "Indonesia Forest 
Resources and Management Policy," in Technical Workshop to Explore Options for 
Global Forest Management 254 (David Howlette & Caroline Sargent eds., 1991). 
In Sub-Saharan Africa forest areas are taken over by shifting cultivators at a rate of 
0.6 hectares per year. See Narendra P. Sharma et al., A Study for the Forest Sector 
in Sub-Saharan Africa 29 (World Bank ed., 1 994). 

102 Hans P. Binswanger, "Brazilian Policies that Encourage the Deforestation 
in the Amazon," 19 World Development 821, 827 (1991). 



50 Biodiversity and Human Rights 

The conversion of forests into agricultural lands has been blamed 
often on the short-sighted reluctance of peasants to make a long-term 
investment in forest preservation. Peasants, it is argued, are cultivat- 
ing deforested land because they are unable to see the long-term and 
global benefits of forest preservation. Most cleared lands, according 
to this argument, are infertile and cannot sustain agricultural use for 
long periods of time. Therefore, the peasants who clear forests and 
insist on cultivating cleared land do so out of "ignorance or stupidity 
orboth."'03 

Extensive research has demonstrated, though, that not all cleared land 
is infertile. 104 Moreover, productivity may not be in the minds of agri- 
culturists when they cultivate and claim land. All over the world land 
has been used as a security or a speculative asset. 105 Untitled land has 
been used as a speculative asset in most countries that experience high 
rates of migration in forested areas. And many official migration pro- 



103 Michael H. Robinson, "Are There Alternatives to Destruction?" in 
Biodiversity 355 (E.O. Wilson ed., 1988). 

104 See, e.g., Thomas T. Cochrane & Pedro A. Sanchez, "Land Resources, Soils 
and Their Management in the Amazon Region," in Amazonia: Agriculture and Land 
Use Research 137, 163 (Susanna B. Hecht ed., 1982, CIAT Series 03E-3(82)). In 
the Amazon not all soils are poor and subject to erosion after clearance. Erosion is 
unlikely to happen in the Amazon since secondary forests will take the place of pri- 
mary forests. Some of the soil in the Amazon presents significant agricultural poten- 
tial. See Herminio Maia Rocha, "General Evaluation of Development Policies and 
Research in the Brazilian Amazon," in Amazonia, id. at 33. 

In Thailand most of the slash-and-burn practices affect the forests of 
Dipterocarpus spp. Such forests grow in areas suitable for agriculture. See Theodore 
Panayotou & Somthawin Sungsuwan, supra note 1 1 , at 1 6. In Nepal the Tarai for- 
est pursued for alternative uses is not part of the fragile areas of the Hills of Nepal. 
See Krishna Ghimire, Forest or Farm?: The Politics of Poverty and Land Hunger 
in Nepal 6-7 (1992). 

Overall well-drained lands that support the best types of forests with good regen- 
eration potential are the best for cultivation. See John Wyatt-Smith, "Problems and 
Prospects for Natural Management of Tropical Moist Forests," in Natural 
Management of Tropical Moist Forests 5, 19 (Francois Mergen & Jeffrey R. Vincent 
eds., 1987). 

105 See Chapter 2, notes 46 and 47. 



Human Dignity as the Standard 51 

grams, 106 that have acted as wealth distribution mechanism, 107 are 
responsible for the disappearance of forests all over the world. Overall, 
official transmigration programs, increasing populations and the reluc- 
tance of governments to deal with issues of perceived social inequity 108 
make clearing the land, cultivating it and demanding rights to it an act 
motivated by the rational self-interest rather than an act spurred by irra- 
tional behavior. 



Remedies: Secure Land Tenure 

A plausible remedy for forest conversion may be secure land tenure. In 
most areas of the developing world most land resources used to be either 
common property resources or state resources. Common property 
regimes are rapidly disintegrating, though, under increasing populations 



106 The colonization of the Amazon has been part of the official policy in 
Brazil. See "The Trans-Amazon Colonization Program," in Sustainable Settlement 
in the Brazilian Amazon 49 (Carl Jordan, Anna Luiza Ozorio de Almeida & Joao 
S. Campari eds., 1995). See also Gershon Feder, "The Economics of Land and 
Titling in Thailand," in Economics of the Rural Organization 259 (Karla Hoff, 
Avishay Braverman & Joseph E. Stiglitz eds., 1993). 

Many transmigration programs are effective wealth distribution mechanisms. 
Most Amazonian migrants have benefited economically from settling in the 
Amazon. Most of the settlers plan to remain in the Amazon but only few plan to 
engage in agriculture. While the Amazonian settlers have low incomes they are 
still more affluent than half of the labor force in Brazil. See "The Trans-Amazon 
Colonization Project," in Sustainable Settlement in the Brazilian Amazon, supra, 
at 49. 

The goal of the Indonesian transmigration program is to resettle households 
from the crowded areas of Java to the less populated areas and more ecologically 
diverse areas of Sumatra and Kalimatan. The transmigration program has allevi- 
ated poverty and has ensured a more equitable distribution of resources. See Yuli 
Ismartono, "Indonesia: Transmigration Eases Poverty but Threatens the 
Environment," Inter Press Service, Dec. 4, 1995. 

107 See "The Trans-Amazon Colonization Project," in Sustainable Development 
of the Brazilian Amazon, supra note 106, at 49. 

108 Population growth and the lack of alternative employment are often cited as 
the causes of biodiversity loss. See Panayotou, supra note 101, at 16, 21. 



52 Biodiversity and Human Rights 

and the difficulty of local communities to exclude outsiders. 109 States 
also are often unable to monitor the resources that are under their juris- 
diction. Today there is an attempt to replace most common property 
regimes and state property regimes with private property. Privatization, 
it is maintained, provides individuals and communities with incentives 
to upgrade and maintain the resource. The privatization of common 



In many areas of the world land conflicts, due to what is perceived as the 
inequitable distribution of land, are still potent and often become violent. In Brazil, 
for instance, confrontations between the landowners and peasants are often violent. 
See, e.g., Diana Jean Schemo, "Violence Growing in Battle Over Brazilian Land," 
N.Y.Times, April 21, 1996, Sec. 1, at 12, col. 1 ; Ana Maria Galano, "Land-Hungry 
in Brazil," Aug. 1998, available online at http://www.unesco.org/courier/l998_08/ 
uk/dicit/txtl.htm. 

Since countries, though, are reluctant to do anything that resembles redistribu- 
tion of land, deforestation and the ensuing biodiversity conversion are bound to 
continue. 

109 The inability to exclude outsiders transforms common property regimes to 
open access regimes. The resources of open access regimes are available to every- 
body without restriction. Common property regimes work well in traditional soci- 
eties where communities are closed and there is a recognition and respect for local 
authorities. As long as the community is able to enforce its rights common prop- 
erty regimes can function smoothly. 

But common property regimes disintegrate under increasing population pres- 
sures that make it more difficult to apportion the use of resources internally and 
exclude outsiders. This is especially true in forest areas invaded by a large number 
of migrants. 

Common property regimes are viewed as regimes that benefit the poor. However, 
they have been subject to abuses when the community is internally divided and the 
regime favors the local elite rather than the majority of the population. Also occa- 
sionally the lack of individual property rights has benefited the rich landowners. 
For an analysis of the common property regimes and their pitfalls, see S. V Ciriacy- 
Wantrup & Richard C. Bishop, " 'Common Property' as a Concept in Natural 
Resources Policy," 15 Natural Resources Journal 713 (1975); Garrett Hardin, "The 
Tragedy of the Commons," 162 Science 1243 (1968); Proceedings of Conference 
on Common Property (Office of International Affairs, National Research Council 
ed.,1986); Nancy Forster & David Stanfield, Tenure Regimes and Forest 
Management (Land Tenure Center, University of Wisconsin-Madison, March 1993); 
Pauline E. Peters, "Embedded Systems and Rooted Models," in The Question of 
Commons 171 (Bonnie J. McCay & James Acheson eds., 1987). 



Human Dignity as the Standard 53 

property resources, while not ideal, 110 has proceeded rapidly in many 
countries. As cash and perennial crops are introduced, population and 
migration increase and land becomes more scarce, property rights are 
more strongly asserted. 111 The privatization climate that is prevalent 
worldwide has precipitated attempts to introduce formal property titling 
in the developing word. ' l2 

Secure land tenure through privatization will not be a panacea for 
biodiversity conversion. As long as landless people and unexploited 
areas exist biodiversity conversion will continue. However, secure land 
tenure, which can be achieved through privatization, could help con- 
vince people to stay on their land and make the best of it, instead of con- 
stantly clearing land and engaging in speculative real estate transactions. 

People in Biodiversity Areas 

Outsiders viewing the people in developing countries that live around 
biodiversity-rich areas usually place them in one of two categories: 



1 10 Privatization of common property resources has proceeded rapidly in India 
but it has benefited the rich rather than the poor. See J.E.M. Arnold, Common 
Property Management and Sustainable Development in India 8-9 (1990). 
Privatization in Kenya has resulted in increasing disputes and litigation. See David 
Brokensha & Bernard Riley, "Forest Foraging, Fences and Fuel in a Marginal Area 
in Kenya," in Whose Trees? 102 (Louise Fortmann & John W. Bruce eds., 1988). 
Exclusionary private property regimes do not resolve the issue of what to do with 
the people who are left without property rights. Often poor people living on the 
fringes of common property regimes find themselves, on the onset of privatization, 
totally excluded from the use of the resource. See Nancy Forster & David Stanfield, 
Tenure Regimes and Forest Management (Land Tenure Center, University of 
Wisconsin-Madison, March 1993); Kathleen McNamara, "Key Policy Issues," in 
Living with Trees: Policies and Forestry Management in Zimbabwe 1 , 4 (P.N. 
Bradley & K. McNamara eds., 1993). 

111 Land Tenure and Deforestation (United Nations Research Institute for 
Development, Peter Dorner & William C. Thiesenhusen eds., 1992). However, areas 
of low productivity and areas difficult to divide will remain under common prop- 
erty regimes. See Bonnie J. McCay & James A Acheson, "Human Ecology of the 
Commons," in The Question of Commons, supra note 109 at 1, 17. 

112 See, e.g., "A Matter of Title," Economist, Dec. 9, 1 995, at 47. 



54 Biodiversity and Human Rights 

indigenous peoples" 3 who must be allowed in nature reserves or squat- 
ters whose invasion of the reserved areas must be prohibited. 114 While 



113 It is not easy to define "indigenous people." Most definitions of indigenous 
peoples consist of two elements: self-identification and external identification. For 
an individual to be called indigenous s/he must define herself/himself as indige- 
nous and the group s/he belongs to must recognize her/him as a member. In Latin 
America, language, self-identification and geographic location have been used to 
determine who is indigenous. See George Psacharopoulos & Harry Antony 
Patrinos, Indigenous Peoples and Poverty in Latin America (World Bank ed., 1 994). 
Canada and Australia have used similar criteria to identify indigenous peoples. See 
Guntram F.A. Werther, Self-Determination in Western Democracies: Aboriginal 
Politics in Comparative Perspective (1992). A treaty of the International Labor 
Organization (ILO) defines indigenous peoples as tribal peoples whose socioeco- 
nomic status is different from the rest of the nation and who are self-regulated or 
are regulated by special laws. The ILO convention provides also that self-identifi- 
cation should be a fundamental criterion in determining which groups are indige- 
nous. See art. 1, Convention Concerning the Protection and Integration of 
Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries 
(Convention No. 1 69), June 7, 1 989, 72 I.L.O. Official Bull. 59, reprinted in 28 
I.L.M. 1382 (1989). A more progressive definition proposed by Martinez Cobo 
includes marginal or isolated populations who, while they have not suffered by con- 
quest or colonization, still meet the criteria of distinct descent and culture and are 
isolated from the rest of the society. See Study of the Problem of Discrimination 
Against Indigenous Populations by Jose R. Martinez Cobo, Special Rapporteur of 
the Sub-Commission on Prevention of Discrimination and Protection of Minorities, 
E/CN.4/Sub.2/1 986/ADD.4. 

Overall it is difficult to find definitions that satisfy both governments and indige- 
nous groups. Indigenous groups have claimed that self-identification should be the 
most decisive element in identifying who is indigenous and who is not. Other ele- 
ments such as external identification based on distinctive culture and historic con- 
tinuity should not be decisive since many people have evolved culturally and have 
been removed from their land. 

1 14 It has been claimed that the emphasis placed on indigenous groups, and par- 
ticularly the groups that live in the Amazon, has detracted attention from other 
groups that are mixed and constitute a large poor majority. The caboclos of the 
Amazon are often characterized as people of mixed Amerindian and Caucasian 
descent or simply as the "poor Portuguese speaking inhabitants" of the Amazon. 
The cultivation methods of caboclos have been praised by environmentalists and 
caboclos may soon become an updated symbol of environmentalism. See Kenneth 
I. Taylor, "Deforestation and Indians in the Brazilian Amazonia," in Biodiversity, 
supra note 59, at 138; Philip M. Fearnside, The Human Carrying Capacity of the 



Human Dignity as the Standard 55 

indigenous peoples are viewed as "species" 115 that must be protected 
other local groups are viewed as intruders who must be evicted. The 
strict distinction between indigenous people and other mixed popula- 
tions, a result of our destructive obsession with racial purity, has been 
the cornerstone of many conservation policies. The matter of fact is, 
though, that secluded nature reserves will never survive when people 
are starving outside no matter whether they are called indigenous, squat- 
ters or peasants. 

To be allowed in national parks, indigenous groups are instructed to 
use traditional methods such as bow and arrow — not firearms. 116 In the 
Cahuita Park of Costa Rica, it has been claimed that indigenous peoples 
must be excluded because their lifestyle has been altered by tourism and 
the cash economy. 117 Environmentalists support indigenous peoples 
when they confirm what is perceived as "traditional." Mixed people, 



Brazilian Rainforest 1 8 n.5 ( 1 986). For the recent migrants of the Amazon caboc- 
los and Indians fall under the same category, the category of the poor. Both Indians 
and caboclos suffer from various diseases and they are undernourished. Today both 
Indians and caboclos are subject to the same pressures due to increased migration 
but they do not always co-exist harmoniously. Sometimes they form alliances such 
as the Alliance of Rainforest People, an association of indigenous groups and 
extractivists. See Stephen Nugent, Amazonian Caboclo Society: An Essay on 
Invisibility and Peasant Economy (1995); Allyn Maclean Stearman, "Neotropical 
Indigenous Hunters and Their Neighbors," in The Conservation of Neotropical 
Forests 108 (Kent H. Redford & Christine Padoch eds., 1992). 

115 Many national and international development agencies, as well as environ- 
mental and human rights organizations, do not try to understand the political con- 
cerns of forest residents. Forest residents are seen as "passive victims," another 
"species" to be protected from extinction or helped by development. See Theodore 
MacDonald & Janet M. Chernela, Politics, Development and the Indians (unpub- 
lished manuscript, on file with the author). 

116 See Patrick C. West & Steven R. Brechin, "National Parks, Protected Areas, 
and Resident Peoples," in Resident Peoples and National Parks 363 (Patrick C. West 
& Steven R. Brechin eds., 1991). 

117 Kurt Kutay, "Cahuita National Park, Costa Rica," in Resident Peoples, id. at 
1 14. See also Elizabeth Kemf, "Aluna: The Place Where the Mother was Born," in 
The Law of the Mother 131 (Elizabeth Kemf ed., 1993); Silvio Hernandez, 
"Panama: Indigenous People Ready to Fight for Land," Inter Press Service, Sept 
29, 1995. 



56 Biodiversity and Human Rights 

more or less integrated into the prevalent culture, do not qualify from a 
conservationist viewpoint to be called "indigenous." 

This image of indigenous peoples as "ecologically noble savages" 118 
living in isolated, self-sufficient communities and engaging happily in 
hunting and gathering has been discredited by anthropologists. ' 19 In real 
life indigenous peoples engage not only in hunting and gathering but 
also in agriculture. In addition, hunting and gathering in many societies 
are not performed for self-subsistence; they are targeted to commerce. 
In other words, while anthropologists in the past viewed hunting and 
gathering societies as self-reliant and communitarian, 120 a reflection of 
the paleolithic European past, 121 anthropologists today, not always unan- 
imously, 122 have discovered mercantilism and capitalism in traditional 
societies. Hunters and gatherers of these societies are labeled "hot shot 
traders in the mercantile world for ivory and skin." 123 



118 The concept of "noble savage" was the product of European Enlightenment 
which viewed western civilization as corrupt and urged a return to nature. See 
Stephen Nugent, Amazonian Caboclo Society 235 (1995); See also Bernard W. 
Sheehan, Seeds of Extinction 90 (1974); Vine Deloria Jr., The God is Red (1973); 
Daniel J. Trainor, "Native American Mascots, Schools and the Title VI Hostile 
Environmental Analysis," 1 995 University of Illinois Law Review 97 1 ; Kent Redford, 
"The Ecologically Noble Savage," 15 Cultural Survival Quarterly 46 (1990). 

1,9 See Carl Hoffman, The Punam: Hunters and Gatherers of Borneo (1986). 
See also Serge Buhuchet, Doyle McKey & Igor de Garine, "Wild Yams Revisited: 
Is Independence from Agriculture Possible for Rain Forest Hunter-Gatherers?," 19 
Human Ecology 2\3(\99l). 

120 Not all indigenous societies are necessarily egalitarian, see, e.g., Olga F. 
Linares, "Palm Oil Versus Palm Wine," in People and Food, supra note 65, at 595, 605. 

121 "Western anthropology has created those societies labeled as forager as sci- 
entifically sanctioned survivors of an evolutionary past, that is, our European past 
... a past rooted in Euroamerican conceptions about the passage of events. 
Anthropology has thereby aided the overarching colonial process in appropriating 
these societies to our own histories to our own mythological use . . . these people 
have been left out without history." See Edwin N. Wilmsen, "Introduction," in We 
Are Here: Politics of Aboriginal Land Tenure 1,6 (Edwin N. Wilmsen ed., 1989). 

122 Jacqueline S. Slowly & Richard B. Lee, "Foragers: Genuine or Spurious?," 
31 Current Anthropology 109 (1990). See also Politics and Histories in Band 
Societies (Eleanor Leacock & Richard Lee eds., 1982). 

123 Response of Schire to "Foragers: Genuine or Spurious?" supra note 122. 



Human Dignity as the Standard 57 

The conservationist ideal of indigenous peoples as "ecologically 
noble savages" has harmed indigenous groups 124 and distracted from 
their real problems, which often involve poverty and diminished health. 
The perception that indigenous groups live in communitarian societies 
with no concept of private property has allowed governments to expro- 
priate their land. 125 Beliefs that indigenous cultures will disintegrate 
under the forces of modernity have legitimized paternalistic attitudes 
towards indigenous customs and beliefs. 

Indigenous groups have claimed that equating them with nature is 
pejorative and violates their human rights. And for many indigenous 
groups self-determination involves the exploitation of natural resources 
including minerals, timber and game. 126 Many indigenous groups have 
collided with animal rights activists who consider unethical the killing 
of animals. 127 

Despite these ideological differences, many indigenous groups view 
the environmental movement, which enjoys prestige in international 
organizations and foundation circles, as a means to publicize their plight 
and attract favorable attention. In the beginning, this alliance between 



124 Sheehan, supra note 1 1 8, at 102 ("[t]he subtle infiltration of noble savagism 
into the actual relationship between the white man and the native proved fatal to 
the survival of the Indian and seriously hampered the white man's perception of the 

consequences of his acts The Indian could not hope to equal the level of virtue 

attributed to him, because the primitivist formulations drew on a set of presuppo- 
sitions wholly different from those within the reach of real men. Limited by the 
inertia of a time bound culture and threatened by cultural disintegration, the Indian 
could not but be pitied for his fate."). 

125 For a discussion of ownership in traditional societies, see Politics and 
History in Band Societies 8 (Eleanor Leacock & Richard Lee eds., 1982); Robson 
Silitshena, "The Impact of Colonialism on Land Use in Central and South 
America," in The Struggle for the Land 146 (Paul A. Olson ed., 1990). 

126 In North America and Canada many indigenous peoples' enterprises are 
based on the exploitation of natural resources. In the United States and Canada, 
indigenous peoples own logging, farming, ranching and fishing business. See The 
Native North American Almanac 921 (Duane Chapagne ed., 1994). 

127 The livelihood of Canada's indigenous peoples is under constant threat due 
to the prohibitions in trading fur products. 



58 Biodiversity and Human Rights 

the environmental movement and the indigenous peoples' movement 128 
seemed promising only to disintegrate quickly because of the differing 
views held by conservationists and indigenous groups. Indigenous 
groups desire what all oppressed groups desire: power and control over 
their affairs. 129 The goal of the environmental movement, on the other 
hand, is the protection of the environment and humans are often a hin- 
drance to that goal. A contentious issue between environmentalists and 
indigenous groups is land ownership. Indigenous groups desire unques- 
tionable control over their lands. Environmentalists would rather prefer 
that nature reserves remain under government ownership and regulation. 
Behind the faith in government ownership lurks the belief that indige- 
nous groups do not have the sophistication to handle complex issues of 
conservation and will be taken advantage of by ruthless corporations. 130 



128 The oppression of indigenous groups has sparked a strong indigenous move- 
ment. In the North most of the battles are fought in court or the negotiating table. 
In the South most battles are fought still on the ground. See, e.g., Indigenous 
Peoples and Democracy in Latin America (Donna Lee Van Cott ed., 1994). 

129 There is a gap between the indigenous movement leadership and the groups 
it claims to represent. For instance, the Amazonian Indians have claimed often that 
the Confederation of Indigenous Nationalities of the Ecuadorian Amazon does not 
represent their interests. An agreement between the Confederation and a North 
American environmental organization, the Natural Resources Defense Council, was 
disapproved by the Amazonian Indians, see Joe Kane, "Letter from the Amazon," 
New Yorker, Sept. 27, 1993, at 54. 

130 Janet M. Chernela, "Sustainability in Resource Rights and Conservation: 
The Case of an Awa Biosphere Reserve in Colombia and Ecuador," in Indigenous 
Peoples and the Future of Amazonia: An Ecological Anthropology of an Endangered 
World 245 (Leslie E. Sponsel ed., 1995). 

A statement made by an Indian is characteristic of what indigenous groups are faced 
with: 

One of the biggest problems we've had to deal with in this political fight is 
just overcoming stereotypes and people's predisposition about how smart 
Indians are. We've had to spend an awful lot of time just convincing people 
that Indians are smart enough to deal with waste companies, and Indians are 
smart enough to regulate landfills and manage the environment. And that's 
the sort of thing you shouldn't have to prove in this day and age. 

Indian people have been told all their lives that they' re lazy, that they're 
ignorant, that they don't really want to do anything to improve themselves. 



Human Dignity as the Standard 59 

In the Amazon, where the players consist of a mixture of indigenous 
peoples and environmentalists, indigenous groups still form alliances 
with environmentalists against the big corporations. But the goals of 
indigenous groups differ from the goals of environmentalists. Environ- 
mentalists seek to prevent the development of the Amazon, while indige- 
nous groups hope to use their resistance as a bargaining chip to obtain 
land concessions from the government. Indigenous groups in Latin 
America hope that one day they will be able to acquire land, mineral and 
timber rights as their counterparts in Canada and the United States have 
already done. 

Many of the aspirations of indigenous peoples are reflected in the 
Draft Declaration on the Rights of Indigenous Peoples. 131 This declara- 
tion has yet to be adopted because countries are reluctant to endorse a 
document that may legitimize secessionist claims of the indigenous peo- 
ples living in their territory. 132 

Indigenous peoples have put forward also their recommendations for 
the revision of the policies of the World Bank. According to these rec- 
ommendations, 133 which reverberate many of the provisions of the Draft 
Declaration: 



And here we are at Campo, we're trying to create jobs, we're trying to cre- 
ate income. We're trying to build houses, we're trying to build clinics, we're 
trying to get the kids go into college. And yet there are still people who want 
to keep us down. 

Dan McGovern, "Experts from the Campo Indian Landfill War: Fight for Gold in 
California's Garbage," 1 4 Stanford Environmental Law Journal 375, 405 (1995). 

131 Draft Declaration on the Rights of Indigenous Peoples, Aug. 26, 1994, 
E/CN.4/Sub.2/1 994/2/Add. 1 . 

132 See, e.g., art. 3 1 of the Draft Declaration, id. "Indigenous peoples, as a spe- 
cific form of exercising their right to self-determination, have the right to auton- 
omy or self-government in matters relating to their internal and local affairs " 

133 For an exhaustive list of these recommendations, see Thomas Griffiths & 
Marcus Colchester, Indigenous Peoples, Forests and the World Bank: Policies and 
Practice 8-10 (Draft Discussion Document, Workshop on Indigenous Peoples, 
Forests and the World Bank, May 9-10, 2000). 



60 Biodiversity and Human Rights 

the right of "self-identification" as indigenous must be recognized; 
indigenous peoples must not be involuntarily resettled. Resettlement 
can only take place with the full, prior, free and informed consent 
of affected indigenous communities. Resettlement cannot even be 
allowed in cases it "was demonstrated to be unavoidable;" 
the prior informed consent of indigenous peoples must be sought 
before their knowledge is disseminated and used by non-indige- 
nous peoples; 
• indigenous peoples must be consulted on their views on "appro- 
priate compensation and mitigation measures" and must be 
involved in monitoring development projects. 

It would be interesting to see how many of these recommendations 
the World Bank will adopt as policies and how many of these policies 
would be applied in practice. 



Chapter 2 

Evaluation of Biodiversity 

Protection Methods 



This chapter examines the costs and benefits of biodiversity protection 
methods using human dignity as a benchmark. The discussion that fol- 
lows demonstrates that biodiversity will not be protected if we just iso- 
late an area, call it "park," and heavily guard it. What is needed instead 
is special attention to the unique conditions of the people involved. 
These conditions in most cases dictate that nature reserves that do not 
allow for consumptive uses and do not cater to the immediate needs of 
local people cannot be pursued successfully in the developing world. 

1. APPLYING CONSERVATION: EMPIRICAL EVIDENCE 

1.1. Strict Enforcement in Nature Reserves 

Colonial governments were the first to impose environmental manage- 
ment accompanied by strict enforcement in areas that were previously 
free access. These areas were isolated, called "nature reserves," and 
removed from productive use. 1 Similar policies are still implemented by 
the regimes that followed colonialism when it is realized that the rev- 
enues generated by the consumptive uses of protected areas, such as 
safari hunting and tourism, are a good source of foreign exchange. 
Revenues from the consumptive uses of protected areas are also a good 
supplement to the revenues provided by agriculture, mining, and 
forestry. When nature reserves can pay for their preservation, enforce- 
ment is so relentless that some commentators have characterized it 
"coercive conservation." 2 Evidence of this type of coercive conserva- 
tion is provided below. 



1 Producing Nature and Poverty in Africa: Continuity and Change ( Vigdis 
Broch-Due & Richard A. Shroeder eds., 2000). 

2 Nancy Peluso, "Coercive Conservation: The Politics of State Resource Control," 
3 Global Environmental Change— Human and Policy Dimensions 1 99 ( 1 993). 

61 



62 Biodiversity and Human Rights 

In Botswana, strict enforcement is the norm in the conservation of 
nature reserves. For instance, Botswana's government has been involved 
for the last twenty years in violent confrontations with the Tyua people 
who live outside the Wankie National Park. The Tyua people have been 
arrested and tortured if found hunting in the restricted areas of the park. 
There have been instances where the personnel of the Wildlife 
Department shot and killed people found in these areas. The Department 
of Wildlife sees the Tyua as poachers who are armed and must be dealt 
with aggressively. According to some accounts, 96 people were killed 
in 1992 alone. As one Tyua woman put it: "Just because these people 
say they are helping preserve the environment does not mean that they 
should be able to violate our human rights." 3 

The American Anthropological Association (AAA) has reported other 
such incidents in Botswana. For instance in 1997, the government tried 
to resettle several people who live outside the game reserve of Central 
Kalahari. The. resettlement took place under a climate of intimidation. 
Up to two-thirds of the residents of some communities, mostly males, 
have been arrested by game scouts and the police force. Since the males 
in the families tend to be the bread-winners some of the families are 
now living below the level of poverty. People claim that they have been 
tortured or have received inhumane and degrading punishment. There 
have been cases were people died because of the injuries inflicted by 
game scouts. 4 

Kenya is another example of a country that has tried to enforce the 
strict exclusion of local people from nature reserves. In 1989, in order 
to preserve the elephant, Kenya led efforts to ban the ivory trade. While 
the ban was initially successful because of the generous international 
assistance, it became ineffectual when the assistance dried up. In Kenya, 



3 Robert K. Hitchcock, "Centralization, Resource Depletion and Coercive 
Conservation among the Tuva of the Northeastern Kalahari," 23 Human Ecology 
169 (1995). See also Robert K. Hitchcock, "International Human Rights, the 
Environment and Indigenous Peoples," 4 Colorado Journal of International 
Environmental Law and Policy 1 (1994). 

4 Report to the AAA Committee for Human Rights, Human Rights, 
Development and the Peoples of Central Kalahari Game Reserve, Botswana 
(Human Rights Briefing Documents, Sept. 1997). 



Evaluation of Biodiversity Protection Methods 63 

75 percent of the wildlife still roams outside reserved areas destroying 
farms and ranches and is persistently killed by apprehensive and frus- 
trated locals. 5 

Kenya's efforts to evict indigenous groups under the pretext of con- 
servation have persisted until today. On March 23, 2000, the Nairobi 
High Court decided to evict the Ogiek from their lands in the Tinet 
Forests. According to the court, "the eviction is for the purpose of sav- 
ing the whole Kenya from possible environmental disaster." 6 The Ogiek 
have argued that depriving them of access to the forest infringes upon 
their right to life and livelihood. 7 

Coercive conservation has been institutionalized globally by the poli- 
cies of the World Bank and its affiliates. The eco-development project 
at the Nagarahole Park in India supported by the funds of the World 
Bank and the Global Environment Facility (GEF) took place by evict- 
ing 6,000 tribal people (58 tribal settlements) out of their traditional 
lands. While the World Bank labeled the displacement voluntary many 
people were simply forbidden from continuing their traditional activi- 
ties within the forests. Eventually the villagers asked the Bank's 
Inspection Panel to review the project. The Inspection Panel upheld the 
peoples' complaints and found that the Bank staff did not implement the 
Bank's policies. 8 

In 1994, the World Bank awarded a US$20 million GEF grant to the 
Philippines for the purposes of preserving that country's biodiversity. 
As the project is about to be completed indigenous peoples claim that: 



5 "Why We Ought to Hunt Big Animals," The Economist, April 20, 1 996, at 
76; "Kenya Seeks Way to Save Its Wildlife," Chicago Tribune, Mar. 15, 1996, 
at 19. 

6 "Green Smokescreen for Eviction of Forest People," Survival International 
Newsletter, Spring 2000. 

7 Id. 

8 See Thomas Griffiths and Marcus Colchester, Indigenous Peoples, Forests 
and the World Bank: Polices and Practice 20 (Workshop on Indigenous Peoples, 
Forests and the World Bank, May 2000). 



64 Biodiversity and Human Rights 

They are frustrated and disillusioned with delays in receiving 

promised funding. 

It is unjust to prevent them from pursuing their traditional activities. 

The NGOs use them to get funding without making sure that 

indigenous families get benefits. 

The project is just another "protectionist" conservation project 

that refuses to deal with controversial issues of land rights and 

customary access to forest resources. 9 

The legislation that provides the foundation for the National 
Integrated Protected Area System in the Philippines buttresses the 
claims of indigenous peoples. The law's objective is to preserve the cus- 
tomary rights of peoples in protected areas. But the law also aims to put 
protected areas under study so that "experts" can decide "where, when 
and how much natural resources local communities can extract" weak- 
ening thus local management systems. 10 

The establishment of Bwindi and Mgahinga National Parks in 
Uganda in 1991 with the input of international funds including funds 
from the GEF has resulted in the eviction of Batwa people from their 
traditional lands. The evictions have destroyed the local economy which 
is forest based and have led to the severe impoverishment of Batwa. 
Today some Batwa are beggars while others are landless laborers. The 
Batwa see land redistribution as their only hope to some sort of inde- 
pendence. A trust fund has recently been created to deal with the issues 
of land distribution, compensation and forest access. But the adminis- 
tration of the fund has been met with resistance and implementation has 
been slow. ' ' 

The conflicts between preservation and the survival of local people 
are bound to persist in the future given the large number of people who 
live in protected areas. In Latin America, for instance, 86 percent of 



9 Id. at 21. 



10 Marcus Colchester, "Beyond 'Participation': Indigenous Peoples, Biological 
Diversity Conservation and Protected Area Management," 47(3) Unasylva 33 
(1996). 

11 Griffiths, supra note 8, at 24. 



Evaluation of Biodiversity Protection Methods 65 

protected areas are inhabited. 12 In India 69 percent of the protected areas 
are inhabited. 13 According to the International Union for the 
Conservation of Nature, 70 percent of all protected areas worldwide are 
inhabited 14 and most of the inhabitants are indigenous peoples. 

Coercive conservation is also expressed in the "war" that some devel- 
oping countries have waged against poachers. Poachers, though, as ana- 
lyzed below, are often peasants who are willing to risk their lives 
because of the wealth promised by poaching. In Kenya, for instance, an 
anti-poaching patrol killed four elephant poachers who defied orders to 
surrender. 15 In Malawi, wardens often punish the poachers immediately 
instead of handing them over to the police as the law requires. Captured 
poachers are allegedly maimed, electrocuted, raped, or brutally killed by 
the wardens in Malawi's Liwonde National Park. 16 In Swaziland, any- 
one convicted for poaching must spend five years in prison, and if they 
cannot replace the slain animal, they must spend seven years in prison. 
Swazi rangers have been armed with assault rifles and are allowed to 
shoot to kill to protect themselves. They have killed at least two poach- 
ers in the last ten years and shot and wounded several others. Swazi- 
land's game rangers are immune from prosecution and have the right to 
search and arrest without a warrant. It has been reported that "conser- 
vationists across Africa and elsewhere have said Swaziland's no-non- 
sense approach is a model for other countries in the continent." 17 In 
China anti-poaching laws are enforced strictly. A Chinese court has 
jailed a peasant for twenty years for killing three pandas and stabbing 
and injuring a police officer while resisting arrest. In the past, killers of 
pandas faced the death penalty in China. 18 In 1984, the Zimbabwe Parks 



12 Colchester, supra note ] 0. 

13 Id. 

14 Id. 

15 "Kenyan Wildlife Guards Kill Elephant Poachers," Reuters News Service, 
Jan. 4, 2001, available online at http://www.reuters.com. 

16 "Malawi Poachers Pay Dearly," Panafrican News Agency, Feb. 14, 2000. 

17 Ed Stoddard, "Tough Swaziland Laws Deter Rhino Poachers," Reuters News 
Service, June I, 2001, available online at http://www.reuters.com. 

18 "China Jails Farmer for 20 Years for Killing Pandas," Reuters News Service, 
Nov. 26, 1998, available online at http://www.reuters.com. 



66 Biodiversity and Human Rights 

Department set up Operation Stronghold to defend the rhino, a military 
operation that defends wildlife with shoot-to-kill policies. Wardens were 
equipped with automatic weapons, and poaching was punished with five 
years in prison. Despite these measures, Zimbabwe's black rhino popu- 
lation declined from 1,400 to 381 between 1981 and 1994. 19 

The unquestionable enforcement of wildlife laws in national parks 
has generated grass root political action in indigenous and local com- 
munities all over the world. 20 

1 .2. Prohibiting/Restricting Trade in Endangered Species: 
Black Markets and Poachers 

It was hoped that the CITES Convention, analyzed in detail in Chapter 
3, with the prohibitions and restrictions it has enacted against the trade 
of endangered species, would be the instrument to help save the species. 
But the opposite has happened. Many of the species that the CITES 
Convention was supposed to "save" remain endangered and others are 
added to the list while countries still quibble over whether trade prohi- 
bitions/restrictions are the best way to save the species. For instance, in 
the case of ivory trade, Kenya, Western governments, and conserva- 
tionist groups are in support of the CITES ban on ivory trade, while 
Zimbabwe, Namibia, Botswana, and South Africa propagate lifting the 
ban to help support their conservation programs. 21 The ivory politics 



19 Marcela Rata, "Black Rhinos, Horn and Trade," 7 TED Case Studies, Jan. 
1997, available online at http://www.american.edu/TED/class/all.htm. 

20 See, e.g., Roderick P. Neumann, "Local Challenges to Global Agendas: 
Conservation, Economic Liberalization and the Pastoralists' Rights Movement in 
Tanzania," 27(4) Antipode 363 (1995). 

21 Between 1 979 and 1 989, ivory poachers reduced the elephant population in 
Africa from 1 .3 million to 625,000. Parties to the CITES Convention decided, there- 
fore, to ban all trade in elephant products. However, Southern African states, whose 
elephant populations grew during the worst poaching years, always resented the 
ban. At the CITES meeting held in Harare in 1997, Botswana, Namibia, Zimbabwe, 
and South Africa lobbied to allow the trading of ivory under the system of permits 
mandated by Appendix 11 of the CITES Convention and succeeded in removing the 
ban. Now Kenya and India are pushing for a return to the ban claiming that their 
elephant populations are suffering because of the increase in poaching. See Simon 



Evaluation of Biodiversity Protection Methods 67 

have reached the point that allegations are made that illegal poachers in 
Zimbabwe are supported by conservationists and Western governments 
who want to discredit Zimbabwe's local wildlife management efforts. 22 

The functioning of the CITES Convention is undermined by the exis- 
tence of black markets in the species and products that are under CITES 
protection. Trade restrictions and prohibitions fuel the black market and 
make illegal poaching an attractive activity for many people in devel- 
oping countries. 

Black Markets 

The black market in the species proclaimed endangered by CITES is 
flourishing. The most notable examples include the trade in ivory and 
in rhino horn. 

The prices paid for ivory increased from $2.25 per pound in 1960 to 
$68 per pound in 1988, indicating that ivory is now traded more like 
gold and silver— as a hedge against inflation. 23 In 1998, ivory was worth 
$250 per pound in Japan. 24 A great deal of the illegal trade in ivory 
occurs regionally within Africa. African ivory markets are supported by 
local authorities, affect international trade and constitute the reason for 
the serious poaching of elephants throughout Africa. Diplomats and per- 
sonnel from the military and international organizations are heavily 
involved in illegally exporting raw and worked ivory. 25 



Robinson, "Dying for Ivory," Time Europe, April 17, 2000, available online at 
http://www.time.com/time/europe/magazine/2Q0104l7/ivory.html 

22 "Poachers Kill 84 Elephants in Zimbabwe Park," Reuters News Service 
[Online], Nov. 24, 1999, available at http://www.reuters.com. 

23 Testimony of Dr. Teresa M. Telecky, Director of the Wildlife Trade Program 
the Humane Society of the United States on the H.R. 39, The African Elephant 
Conservation Reauthorization Act of 1997 before the Subcommittee on Fisheries, 
Conservation, Wildlife & Oceans, Mar. 13, 1997, available online at http://www. 
house.gov/resources/105cong/fisheiy/marl3.97/telecky.htm. 

24 See Jaya Mathur, "Legal Ivory Trade and CITES," 8 TED Case Studies, June 
1 998, available online at http://www.american.edu/TED/class/all.htm. 

25 Esmond Martin & Daniel Stiles, The Ivory Markets of Africa (2000). 



68 Biodiversity and Human Rights 

In 1990, the average cost per kilogram of an African rhinohorn was 
$10,284 while for an Asian horn this figure was $21,354. In some Asian 
countries like Taiwan, the cost per kilogram has reached $60,000. The 
average value of each horn is $80,000. 26 Nepal's efforts to boost the 
country's rhino population are frustrated by illegal hunting. Since 1996 
poachers have killed 26 rhinos for their horn, which fetches Rs 50,000 
in the local market. One kilogram of rhinoceros horn can bring as much 
as Rs 1.5 million. The principal buyers of this powder, that is believed 
to be an aphrodisiac, are the wealthy in Hong-Kong, Japan, Taiwan, 
Thailand, and Singapore. 27 

The black market in endangered species products is supported by the 
same states who are supposed to enforce the CITES Convention. States 
have enacted reservations against certain prohibitions of the CITES 
while others have refused to sign and ratify the treaty because of their 
cultural traditions. For instance, although China became a member of 
CITES in 1981, it remains the world's largest importer of rhino horn and 
manufacturer of rhino products. China re-exports rhino horn and prod- 
ucts to other eastern Asian countries. 

Poachers 

It is claimed often that conservation will win if developing countries 
strictly punish the poachers who destroy the wildlife. The question is 
then: who are these poachers'? 

A poaching organization is organized as follows: the heads of the 
organization who are sometimes government officials; the dealers who 
manage the operations; and the people who actually engage in poach- 
ing. Most poaching operations are highly organized and well con- 
nected to politicians who are willing to look the other way for a price. 
The poverty of some developing countries makes it easy for dealers to 



2 6 Karen Sack, "CITES Rhino Horn Trade Ban," 2 TED Case Studies, Jan. 
1993, available online at http://www.american.edu/TED/class/aU.htm. 

27 "World's Remaining 2,500 Asian Rhinos Threatened by Poachers, Loss of 
Habitat Due to Logging and Expanding Farms," Dec. 24, 2000, available online at 
http://www.eces.org/articles/static/97763760064I92.shtml. 



Evaluation of Biodiversity Protection Methods 69 

find people willing to risk their lives to poach wildlife. These are the 
people whose human rights and dignity are violated by wildlife 
departments. 28 

Sometimes crime syndicates organized during war times and com- 
prised of businessmen and warlords do not only commit atrocities 
against the people but also poach animals. Most often, though, poach- 
ers who operate on the ground are poor villagers who engage in 
poaching with the support of the local population. Usually poachers 
come from the communities that surround rich-in-wildlife areas and 
are often sheltered by those communities. 29 Whether a local commu- 
nity supports the poachers or the state depends on how alienated it 
feels from the state. 30 For instance, in Zimbabwe before the CAMP- 
FIRE 31 program people were very supportive of the poachers who 
were viewed as heroes. From 1980 to 1982 the Mahenye people con- 
tinued to hunt in the Gonarezhou National Park despite the govern- 
ment's prohibitions and were supportive of the ivory hunters. Local 
people reasoned as follows: if they had been excluded from the park 
because of tourism then it made sense to hunt animals to extinction. 
After the species had become extinct, the tourists would not come and 
they would be able to return to their land. 32 After the adoption of the 
CAMPFIRE, though, poaching lost its support and actually was 
opposed by many communities. 33 



28 "Poachers Killed Five Elephants in World Famous Corbett National Park," 
Reuters News Service, Feb. 1 9, 200 1 , available online at http:// www.reuters. com; 
"Clipping the Wings of Poachers in Zimbabwe," Animal People, Nov. 2000. 

29 See Mahesh Rangarajan et al., People, Parks and Wildlife (2000). 

30 Vasant K. Saberwal, Reconciling the Needs of Man and Wildlife in India 
(American Society of International Law- Wildlife Interest Group, Sept. 1999). 

31 For the details of the CAM PFI RE program, see infra Section 4. 1 . 

32 H.J. Goodwin, I.J. Kent, K.T. Parker & M.J. Walpole, Tourism, Conservation 
& Sustainable Development: Volume IV, The South-East Lowveld, Zimbabwe (April 
1997) (unpublished manuscript, on file with the author). 

33 See infra Section 4. 1 . 



70 Biodiversity and Human Rights 

2. FROM NATURE RESERVES TO CO-MANAGEMENT 

Nature reserves and parks involve protection of biodiversity in its nat- 
ural environment. As mentioned above, the two approaches to nature 
reserves — the European and North American — differ from each other. 

In Europe active management is adopted openly since most "conser- 
vation" areas are "landscapes" created by humans. Landscapes are a 
mosaic of " seminatural forests, woodlands, and grasslands, and agri- 
cultural fields, and plantations, interspersed with hedgerows, terraces, 
roads, and settlements." 34 In landscapes humans function in harmony 
with the "natural ecosystems." They are the shapers and initiators of 
many ecosystems. Multipurpose reforestation, afforestation, restoration 
and ecosystem manipulation may be used to a greater or lesser extent 
for landscape management. 35 In Europe the term "ecological network" 
is used much more extensively than the term "nature reserve" which 
emphasizes again a view of ecosystem management as management 
of interconnected areas rather than of secluded spots in the national 
geography. 36 

In the United States nature reserves are still perceived as areas to be 
isolated from humans. The 1964 United States Wilderness Act made 
official the notion of nature as wilderness isolated from human impacts. 
According to the Act, nature parks are areas "where man himself is a 
visitor who does not remain." 37 Most parks, though, when they were ini- 
tially established, were inhabited by the Indians who eventually became 
the parks' unwelcome guests. The establishment of the first national park 



34 Zev Naveh, "Biodiversity and Landscape Management," in Biodiversity and 
Landscapes 187, 188 (Ke Chung Kim & Robert D. Weaver eds., 1994). 

35 Id. at 202-03. 

36 The European Union has formally established an Ecological Network 
(EECONET). See Protecting Nature: Regional Reviews of Protected Areas 107 (J. A. 
McNeely et al. eds., 1994); See also Ivan Voloscuk, "EECONET and Forests," in 
Conserving Europe 's Natural Heritage: Towards a European Ecological Network 
103 (Graham Bennett ed., 1994). 

37 See 1 6 U.S.C. § 1131, Section 2(c ): "A wilderness ... is hereby recognized 
as an area where the earth and its community of life are untrammeled by man, 
where man himself is a visitor who does not remain." 



Evaluation of Biodiversity Protection Methods 71 

in the United States uprooted the indigenous peoples living there. The 
establishment of Yellowstone National Park in 1872 was made possible 
by evicting the resident Shoshone Indians. The evictions led to violent 
conflicts between the Shoshone and the park authorities. Three hundred 
people were killed in clashes in 1877. 38 

Despite the wide-held notions that the United States National Parks 
are wild areas secluded from humans, management is used often to 
revamp "degraded reserves." Regulated human use is allowed also but 
it often conflicts with the purist desire to preserve the ecosystem intact. 39 

Developing countries have supported strict nature reserves enticed 
by the potential of economic windfall and encouraged by international 
organizations, and have used the reserves as an excuse to suppress their 
indigenous populations. But the strict nature reserve model is under 
attack in the developing world because of the large numbers of landless 
people. 40 Reserves that are inadequately monitored are constantly infil- 
trated by local people who view them as arbitrary violations of their nat- 
ural rights to forests. Local people do not hesitate to destroy forests to 
demonstrate their anger against governments. 41 

Even under a modern approach to nature reserves that attempts to 
exclude humans only from core reserve areas, 42 local people remain 



38 Colchester, supra note 1 0. See also Marcus Colchester, "This Park Is No 
Longer Your Land," July 2001, available online at http://www.iinesco.org/courier/ 
2001_07/uk/planet.htm. 

39 See Frederic H. Wagner et al., Wildlife Policies in the U.S. National Parks 
(1995). 

40 See, e.g., R.H.V. Bell, "Conservation with a Human Face: Conflict and 
Reconciliation in African Land Use Planning," in Conservation in Africa 79, 88, 
(D. Anderson & R. Grove eds., 1987). 

41 See, e.g., Jack Westoby, Introduction to World Forestry 34 ( 1 989). 

42 The modern approach to forest area management presupposes the involve- 
ment of local communities by providing incentives to maintain the reserve rather 
than destroy it for the quick economic benefit. The International Union for 
Conservation of Nature and Natural Resources (1UCN) in a revision of protected 
areas added a category of "managed resource protected areas," areas managed for 
the "sustainable use" of the ecosystem. See Guidelines for Protected Area 
Management Categories 23 (IUCN ed., 1994). For other attempts to classify pro- 



72 Biodiversity and Human Rights 

dissatisfied. The biosphere reserves proposed by the United Nations 
Educational, Scientific and Cultural Organization (UNESCO) are often 
cited as an example of this modern approach. The biosphere reserves 
contain a core conservation area and buffer zones where different uses 
are permitted. 43 But the distinction between core areas and buffer zones 
is not followed in practice. Most biosphere reserves today consist of a 
patchwork of preexisting national parks with no separation between core 
areas and buffer zones. 44 Wild animals enter freely buffer zones destroy- 
ing crops and property. 45 Core areas are often fertile and buffer zones 
are degraded generating demands to open core areas to use. 

Even with these mixed-use reserves, local people remain unhappy for 
two reasons: 

They believe that they are viewed as the instrument or object of 
conservation rather than the decisionmakers that should dictate 
biodiversity protection priorities and needs. 
• They see nature reserves as a way to deprive them from access 
to land. It is not important that the land may be infertile. In their 
eyes, land has always value since it can be used as a security or 
a speculative asset. 46 Untitled land has been used as a specula- 



tected areas, see Managing Global Genetic Resources (National Academy of 
Sciences ed., 1991 ); Technologies to Sustain Tropical Forest Resources (United 
States Office of Technology Assessment ed., 1994); Guidelines on Conservation 
of Biological Diversity in Tropical Production Forests (International Tropical 
Timber Organization Policy Development Series No. 5 ed., 1993). 

43 For a good description of a biosphere reserve, see "Conservation of Genetic 
Resources," in Tropical Forest Management 41-44 (FAO paper 107, ed., 1993). 

44 See Craig L. Shafer, Nature Reserves: Island Theory and Conservation 
Practice 77 (1990). 

45 See generally R. Sukumar, The Asian Elephant: Ecology and Management 
(1989). 

46 The colonization of the Amazon has been part of the official policy in 
Brazil. In the 1970s when a severe draught ravaged the highly populated northeast 
region, the President of Brazil proposed a highway construction across the Amazon 
that would allow for the colonization of the area. See "The Trans-Amazon 
Colonization Project," in Carl Jordan et al., Sustainable Development in the 
Brazilian Amazon 58 ( 1995). 



Evaluation of Biodiversity Protection Methods 73 

tive asset in Brazil during the official transmigration program to 
the Amazon and in other countries where populations migrate 
to forested areas. 47 

Local people still view conservation as another government ruse to 
deprive them of land. As mentioned before, the first legislative instru- 
ments to protect wildlife by excluding human use were adopted by colo- 
nial powers. In India, for example, the British controlled tightly tribal 
hunting and swidden agriculture. When they left, people engaged in 
rampant hunting. 48 Today many people living around forests feel the 
same hostility against the regulations imposed by the national govern- 
ment. The principle that nature reserves cannot exist without some 
allowance for human use is often iterated but it is superficially applied. 
As the population increases, human habitation and conservation become 
irreconcilable. 

Some propose that allowing for the use of a nature reserve is not suf- 
ficient: co-management or participation by local people in decision- 
making must be established. Co-management, though, in many cases 
means multiplication of bureaucracy and does not meet the aspirations 
of people who want to own the land and manage it according to their 
wishes. 49 In 1982 the International Union for the Conservation of Nature 
(IUCN) passed a resolution that advocated joint management projects 
between local people and park authorities. 50 But according to a study 



In Thailand also land, especially untitled land, has been used as a speculative 
asset. In Thailand, while it is difficult to obtain formal title, taxes still have to be 
paid on untitled land. See Philip Hirsch, "Forests, Forest Reserve and Forest Land 
in Thailand," 1 56 The Geographical Journal 1 66, 1 69 ( 1 990). 

47 For instance, in the Amazon region the resale value of land has little to do 
with its productivity. Land is more or less treated like gold bullion. Possessing gold 
bullion is more important for the security it generates rather than for its usefulness. 
See Philip Fearnside, The Human Carrying Capacity of the Brazilian Rainforest 
29-30(1986). 

48 Richard P. Tucker, "Resident Peoples and Wildlife Reserves in India," in Resident 
Peoples and National Parks 40 (Patrick C. West & Steven R. Brechin eds., 1 99 1 ). 

49 See Ken M. East, "Joint Management of Canada's Northern National Parks," 
in Resident Peoples and National Parks, id. at 333. 



50 



Colchester, supra note 1 0. 



74 Biodiversity and Human Rights 

committed subsequently by the same organization, participatory pro- 
jects have pursued often objectives that have nothing to do with the 
wishes of people they are supposed to help. 51 The World Bank has rec- 
ognized also that many of the efforts to include local people are rhetor- 
ical and that most "joint management projects" treat local people as 
passive entities. 52 

3. THE NON-CONSUMPTIVE USES OF BIODIVERSITY 

3.1. Bioprospecting 

Bioprospecting, expected to flourish under the national sovereignty 
regime over biodiversity resources put in place by the Biodiversity 
Convention, has not brought the desired monetary benefits. The national 
sovereignty over biodiversity resources has been widely respected by 
multinational corporations and research institutes. Corporations and 
research institutes have agreed to pay certain fees and royalties for 
access to seeds located in the forests of developing countries. The 
National Cancer Institute of the United States, the New York Botanical 
Garden and private corporations have paid fees or promised royalties as 
an exchange for access to biodiversity resources. 53 

An agreement between the INBio institute, a nonprofit organization 
created by the Costa Rica government, and Merck, a United States phar- 
maceutical company, was the first effort to establish processes and fees 
for access to biodiversity resources. Merck paid an initial $1.1 million 
fee and agreed to transfer technology, train scientists, and pay royalties 
in case an INBio extract produces a viable product. The agreement was 



5' Id. 

52 Id. 

53 The New York Botanical Garden has done so. However, the Missouri 
Botanic Garden finds it inappropriate to have to pay fees because it is a nonprofit 
institution. See Sarah A. Laird, "Contracts for Biodiversity Prospecting," in 
Biodiversity Prospecting 99, 113 (Walter V. Reid et al. ed., 1993). See also Edgar 
J. Asebey & Jill D. Kempenaar, "Biodiversity Prospecting: Fulfilling the Mandate 
of the Biodiversity Convention," 28 Vanderbilt Journal of Transnational Law 703, 
72 1 ( 1 995); Walter V Reid, "A New Lease of Life," in Biodiversity Prospecting, id 
at 1,5. 



Evaluation of Biodiversity Protection Methods 75 

heralded as a victory for developing countries because it practically rec- 
ognized that the acquisition and use of germplasm should be compen- 
sated. At the same time, though, it signaled that biodiversity resources 
are not as lucrative as they have been presented to be. INBio has to pro- 
vide Merck with 2,000 product extracts within two years. Given that 
Merck laboratories need to process 5,000 samples per week to be effec- 
tive, the amount provided by the INBio is too small to be significant and 
proves that Merck places little emphasis on resources collected from 
nature. 54 According to the experts at Merck, the effort put into screen- 
ing "tropical samples is fragmented and not adequate for a significant 
chance of success." 55 

In other biodiversity agreements the royalties negotiated are too 
small — usually within the range of 1 to 2 percent — and only if the final 
product incorporates the plant extract, or if the final product is used for 
the same purposes the plant extract was used traditionally. In addition 
some of the royalty is usually paid back to the collaborating institution 
for its research costs. 56 Of all the investment opportunities forests pro- 
vide, bioprospecting returns are the least predictable and the slowest to 
materialize. On the average, at least ten years elapse between finding a 
promising compound and developing a successful drug. Investors are 
deterred by the low market value of what is called "unprocessed 
biodiversity" — plants and animals of unknown use. 57 Markets for 
untested germplasm do not really exist. 

Given the minimal profits and the limited number of companies 58 that 
may be interested in bioprospecting, it is questionable whether bio- 



54 Asebey, supra note 53, at 725-728. 

55 Georg Albers-Schonberg, "The Pharmaceutical Discovery Process," in 
Intellectual Property Rights and Biodiversity Conservation 67, 91 (Timothy M. 
Swanson ed., 1998). 

56 Asebey, supra note 54, at 730-32. 

57 Laura Tangley, "Rain Forests for Profit," Reuters News Service, Aug. 20, 
1998, available online at http://forests.org/archive/general/prandben/htm. 

58 Today not that many companies engage in drug production from natural sub- 
stances. Shaman Pharmaceuticals, a company dedicated to the production of nat- 
ural remedies has filed for Chapter 1 1 bankruptcy protection. See Brendan Doherty, 



76 Biodiversity and Human Rights 

prospecting agreements are worth the administrative, legal, and moni- 
toring costs that are necessary to negotiate them and enforce them. Even 
companies and research institutions that are genuinely interested in 
exploring natural resources often try to take advantage of the fact that 
the Biodiversity Convention does not apply retroactively, and thus it is 
not applicable to germplasm stored in gene banks before its entry into 
force. As mentioned before, botanical gardens and gene banks have col- 
lected seeds much before the existence of the Biodiversity Convention. 
The access to and experimentation with seeds of known use located in 
gene banks involves much less bureaucracy and is more promising. 

3.2. Extractive Reserves 

Extractivism — the gathering of forest products for commercial pur- 
poses — has been advocated as an alternative to agriculture and logging 
that benefits biodiversity protection. When extractivism is adopted as 
an alternative to consumptive uses one of the issues to be resolved is the 
ability of the extractive reserve to produce eventually on a massive scale 
and market the products extracted. 59 The ability to produce on a mas- 
sive scale is essential if the demand for a product increases and com- 
petitors enter the marketplace. 

Developing extractive enterprises can be daunting. 60 On one hand, 
immediate profits cannot be promised because extractive reserves need 
time to develop. On the other hand, if a reserve is successful excessive 
demand can make it obsolete: other marketers may produce the prod- 
ucts of the reserve reducing its competitive advantage. 



"Shaman Falls Victim to the Law of the Jungle," San Francisco Business Times, 
Jan. 19, 2001, available online at http://www.sanfracisco.bcentral.com/san- 
fracisco/stories/2001/01/22/story7.html. 

59 Jason Clay, "Some General Principles and Strategies for Developing Markets 
in North America and Europe for Non-Timber Forest Products, in Non-Timber 
Products from Tropical Forests," 9 Advances in Economic Botany 101 (1992). 

60 Alfredo Kingo Oyama Homma, The Dynamics of Extraction in Amazonia, 
id. at 23. See also Paul Vantomme, Forest Extractivism in Amazon: Is It a Sus- 
tainable and Economically Viable Activity? (First International Symposium on 
Environmental Studies on Tropical Rain Forests, Oct. 1990, Manous, Brazil). 



Evaluation of Biodiversity Protection Methods 77 

61 



In the eyes of local people extractivism is a low-status activity. 
Agriculture generates more cash and is more stable economically than 
extractivism. Extractivism is rarely competitive with other land uses and 
rarely brings the economic profits that would entice people to abandon 
other land uses. 



3.3. Ecotourism 

Ecotourism is distinguished from mass tourism (and other consumptive 
uses) in that it does not adversely affect the natural environment. 
Ecotourism has been advanced in developing countries as a source of 
income, foreign exchange and as a stimulator of the local economy. 62 

Ecotourism, while trumpeted as a non-consumptive use of biodiver- 
sity, may eventually become another consumptive use. Ecotourism, for 
all its benefits, does not provide a constant revenue stream and in many 
instances is practiced in a way that it is nothing more than another con- 
sumptive use of biodiversity hardly distinguishable from mass tourism. 
Some governments are supportive of ecotourism but others are not sup- 
portive of it because ecotourism can become a mode of "dependent 
development." Tourism is not a stable source of revenue, and its success 
depends on a variety of factors outside the control of the host country. 
After some time, the enviable national park in a country may lose its 
appeal and areas in other countries could become ecotourism magnets. 
Changes in taste, fluctuations in the global economy, and wars can 
depress the local economy if that economy is heavily dependent on 
tourism. 63 

At the local level, ecotourism is supported if the land devoted to it is 
unfit for agriculture. If the land is fertile and can be used for cultivation 

61 Niger C. Sizer, "Socio-Economic Aspects in the Jau National Park, 
Amazonia," in People and Food 789 (UNESCO Man & the Biosphere Series, CM. 
Hladiketal. eds.,1993). 

62 Guidelines: Development of National Parks and Protected A reasfor Tourism 
(World Tourism Organization & United Nations Environment Program eds., 1992) 
[hereinafter WTO Guidelines]. See also Clem Tisdell, "Ecotourism, Economics, 
and the Environment," 34(4) Journal of Travel Research 1 1, Spring 1996. 



63 



WTO Guidelines, id. at 23. 



78 Biodiversity and Human Rights 

or grazing ecotourism is rarely welcome by the locals. Local people 
resent abandoning their activities to become guides for tourists 64 espe- 
cially when the profits from tourism go to outsiders who have the capa- 
bility to build the infrastructure necessary for tourism. 

Tourism can also denigrade local cultures when traditional activities 
become a tourist attraction. Many of the activities in national parks have 
been characterized as nothing more than enforced primitivism. People 
who live in national parks often perform human zoo functions for curi- 
ous tourists. In the Kagga Kamma Game Park of South Africa tourists 
pay $7 to see a Bushman. And the Bushmen receive $1.5 for each tourist 
who pays to view them. 65 

For environmentalists, ecotourism often conflicts with conservation 
interests. Buildings to accommodate tourists, restaurants, souvenir stores 
and the waste generated by tourists are not the optimal formula for the 
"intact nature reserves" environmentalists revere. 66 And it is always 
tempting to open high demand areas to more tourists, resulting in the 
conversion of those areas. 

In conclusion, ecotourism is not always environmentally benign and 
could disrupt the life of local people by forcing them out of their tradi- 



64 Michael Wells & Katrina Brandon, People and Parks 47 (World Bank, World 
Wildlife Fund & U.S. Agency for International Development eds., 1992). 

65 See Suzanne Daley, "Endangered Bushmen Find Refuge in a Game Park," 
N.Y. Times, Jan. 18, 1996, at A4, col. 3; Eddie Koch, "Botswana-Human Rights: 
Sacrificed on the Altar of Tourism," Inter Press Service, April 4, 1996; Donald G. 
McNeel Jr., "Maputo Elephant Reserve Journal," N. Y. Times, Mar. 7, 1996, at A4, 
col. 3. See also Kunda Dixit, "Nepal-Culture: Winds of Change Sweep Sherpaland," 
Inter Press Service, Sept 21,1 995; Kalinga Seneviratne, "Australia: Tourism Gives 
Aborigines Opportunity for Self-Reliance," Inter Press Service, Dec. 8, 1995. 

66 A serious problem in the most visited mountain of the world, Everest, is rub- 
bish. The government of Nepal has attempted to clean the mountain which is often 
called the "world's highest junkyard." Nepal's national parks are also underpres- 
sure because of the increased demand for timber to build lodges. See Gopal Sharma, 
"Glimbers to Take 1.5 Tonnes of Trash off Everest," Reuters World Service, May 2, 
1996; Akhilesh Upadhyay, "Nepal-Energy: Small Hydro-Power Schemes May Save 
Himalayan Forests," Inter Press Service, Oct. 26, 1995; Birman Maharjan, "Asia 
Environment: Tourism is Damaging Nature, and Itself, Inter Press Service," Oct. 
3, 1994. See generally Michael Frome, Regreening the National Parks (1991). 



Evaluation of Biodiversity Protection Methods 79 

tional land. 67 While ecotourism does bring money to countries that have 
the sort of wildlife ecotourists admire, it will not bring money to all the 
countries with nature reserves unless they engage in extensive market- 
ing of the resources and amenities they have to offer. 

4. PRIVATIZATION OF WILDLIFE MANAGEMENT 

4.1. Privatization as Community Empowerment: 
CAMPFIRE and CABNRM 

To avoid the enforcement problems inherent in prohibiting access, some 
countries have enacted laws to privatize wildlife. Under the privatiza- 
tion laws, landowners or rural communities acquire the exclusive rights 
to manage wildlife within their territory. 68 But the ownership of the 
wildlife still remains with the state. 69 

The argument for privatization comes from the realization that the 
threat of extinction is remote for animals that are cared for by private 
owners, for instance, pets and farm animals. The same then must hold 
true for wild animals when they are privately owned. 70 According to this 
argument, the fact that big mammals straddle national frontiers and con- 
sume large amounts of food should not be an obstacle to privatization. 
Ranches and zoos (which keep animals in habitats varying from 100 to 
700 acres) are examples of efforts to contain and manage wildlife. While 
it may be difficult to imagine the elephant or the rhino as farm animals, 
this is how they must be seen in order to survive. The products that can 
be obtained from the elephants and rhinos and their appeal to tourists 
can be used to bring wealth to local communities and can contribute to 
the long-term protection of the species from extinction. 



67 "Call to Review Proclamation of Year of Eco-Tourism ," Afrol News, April 
J 7, 2001 , available online at http://www.afrol.com. 

68 Wildlife is state-owned or is res nullious (without formal owner). See Kay 
Muir-Leresche & Robert H. Nelson, Private Property Rights to Midlife: The Southern 
African Experiment 1 (International Center for Economic Research, April 2000). 

69 Not all privatization involves transfer of property rights, see generally Paul 
Starr, "The Meaning of Privatization," 6 Yale Law and Policy Review 6 ( 1 988). 

70 See Michael 't Sas-Rolfes, Rhinos: Conservation, Economics and Trade- 
offs (Institute of Economic Affairs, 1995). 



80 Biodiversity and Human Rights 

Zimbabwe 's Experience: The CAMPFIRE Program 

Zimbabwe has granted rights to rural communities to exploit wildlife 
and retain the benefits. These rights were granted by the Parks and 
Wildlife Act as early as 1975. By enacting the Parks and Wildlife Act 
the state proceeded, for the first time after colonialism, to grant rights 
to local communities to manage wildlife within their territory for their 
own benefit. 

These rights were not put to use, though, until the mid-1980s when 
the appropriate legal authorities were identified to administer wildlife 
management. Rural District Councils, an administrative division of the 
Zimbabwean state, have been awarded the legal status of Appropriate 
Authority for the management of wildlife resources. 71 The Rural District 
Councils are supposed to devolve all the direct benefits from the man- 
agement of wildlife to the producer communities (Wards) — the com- 
munities directly incurring the costs of wildlife management. 72 Today 
sixteen District Councils have been developed and there are over a hun- 
dred Wards in all sixteen districts. 73 

The Communal Area Management Program for Indigenous Resources 
(CAMPFIRE), through the administrative structure of Rural District 
Councils, Villages and Wards, works more or less like a cooperative. All 
the adults in the community are shareholders in the cooperative and they 



71 "Acts, Amendments and Appropriate Authorities: CAMPFIRE's Legal 
Framework," Fact Sheet, Campfire 2001, available online at http://www.campfire- 
zimbabwe.org/facts_03. html. (The 1975 Parks and Wildlife Act was amended in 
1982 to extend the utilization of wildlife to communal lands. In 1989 the govern- 
ment and several NGOs started an effort to bring the management of wildlife to 
life through the CAMPFIRE (Communal Area Management Programme for 
Indigenous Resources) Project. Other legislation that strengthened local commu- 
nities and passed the management of wildlife on to local communities includes the 
Communal Land Act that classifies and defines communal lands and the Rural 
District Councils Act of 1982). 

72 T. Mavenke, V. Dzingirai & I. Bond, Local Participation as an Instrument 
of Conservation and Development: the Case of CAMPFIRE in Zimbabwe 
(Scandinavian Seminar College, African Perspectives on Policies and Practices 
Supporting Sustainable Development, 1999). 

« Id. 



Evaluation of Biodiversity Protection Methods 81 

receive benefits from employment and dividends from tourism, ivory 
culling and meat marketing. 

The privatization of wildlife management has not obliterated gov- 
ernment involvement. The government still sets the overall goals of con- 
servation, auctions the locally produced ivory and provides expertise in 
wildlife management. Sometimes, though, the government is too intru- 
sive. For instance, communities do no have the final say in selecting the 
safari operator or setting the hunting quotas within their territory. 74 

Zimbabwe's effort to privatize wildlife resources stems from the real- 
ization that wildlife cannot be protected by a system of nature reserves 
because: 

Most of the country's resources are outside national parks, on 
communal lands and privately-owned ranches. 
Many wildlife areas are "island reserves" with the threat of seri- 
ous genetic inbreeding among several species. 
Some species are found at higher than optimum densities in pro- 
tected areas. In many Zimbabwean parks, for instance, elephants 
have created serious environmental degradation. 75 



"to 1 



The privatization of wildlife management in Zimbabwe, through the 
CAMPFIRE program, 76 has abated illegal hunting and other illegal uses 
of the wildlife. Local residents trained as game scouts work to prevent 
poaching and contribute to wildlife management. Revenues raised from 
wildlife projects are used to manage resources. Each village has a 



74 Id. 

75 "Living with Wildlife: How Campfire Communities Conserve their Natural 
Resources," Fact Sheet, Campfire 2001, available online at http://www.campfire- 
zimbabwe.org/facts_04.html. 

76 CAMPFIRE is a collaborative organization responsible for coordinating its 
members' involvement. Its members include: the CAMPFIRE Association which 
represents the Rural District Councils and chairs the CAMPFIRE collaboration, 
the Department of Nationals Parks and Wildlife Management, the Ministry of Local 
Government, Rural and Urban Development, the Zimbabwe Trust, the Africa 
Resources Trust, the World Wide Fund For Nature. See "Who Runs Campfire?" 
Fact Sheet, Campfire 2001, available online at http://www.campfire-zimbabwe. 
org/more_05. html. 



82 Biodiversity and Human Rights 

wildlife committee which deals with animal counting, anti-poaching, 
environmental education and conflicts between rural residents and 
"problem animals" — animals that destroy crops and livestock. 

Privatization has done wonders for the protection of the elephants. In 
1990 Zimbabwe's elephant population was less than 4,000. Today it is 
well over 64,000. And this is because local communities have stopped 
viewing the elephant as a nuisance and have started to appreciate it as 
a renewable resource. In some districts, such as Bulilima Mangwe, ele- 
phant harvesting is the only source of income. With a trophy fee up to 
$12,000 and a daily hunting fee of $1,000 one elephant can realize 
$33,000 over the course of an average 21-day hunt. Normally the safari 
operator retains a daily fee, while the local communities receive the full 
trophy fees plus negotiated fees for the rental of the hunting concession. 
Because of the wealth created, local communities have become more 
tolerant to wildlife. The number of elephants killed for damaging crops 
has dropped and some communities have set aside land for elephant 
reserves. 77 Principles and techniques for wildlife management have been 
adapted and applied to other natural resources such as woodlands, water 
and grass. 

However, even the CAMPFIRE program as applied today is not prob- 
lem-free. There are complaints that the people who are disadvantaged 
by wildlife measures — by ceasing hunting or altering their way of life — 
are not really compensated. 78 One of the reasons for the lack of com- 
pensation may have to do with the way the profits are distributed 79 and 
the fact that marginal communities are easy to bypass with impunity. 

The distribution of profits has become an issue in many communities. 
Rural District Councils are in many cases reluctant to distribute the 



77 "Sharing the Land: People and Elephants in Rural Zimbabwe," Fact Sheet, 
Campfire 2001, available online at http://www.campfire-zimbabwe.org/facts _07. 
html. 

78 Elias Madzudzo, Communal Tenure, Motivational Dynamics and 
Sustainable Wildlife Management in Zimbabwe (Center of Applied Sciences, 
University of Zimbabwe, 1997). 

79 Profits are distributed among wards and are subsequently shared among vil- 
lages but it is claimed that wards are not reflective of the social relationships. Id. 



Evaluation of Biodiversity Protection Methods 83 

profits to the lower management unit 80 because they see the money as a 
means to remedy their own fiscal problems. It is also disturbing that some 
proceeds from wildlife management remain unallocated. 81 Moreover, as 
Wards and District Councils increase, the gross annual benefit per house- 
hold decreases. For instance, in 1996 the gross annual benefit per house- 
hold was $1 1 or less in 75 percent of the Wards. 82 

Also programs like CAMPFIRE are not immune from the problems 
that plague many developing countries such as that of corruption of gov- 
ernment officials. In 1996, Zimbabwe's parliament concluded in a report 
that Zimbabwe's Department of National Parks "is riddled by corrup- 
tion, infighting and jealousy." 83 Zimbabwe's Department of National 
Parks is one of the agencies sponsoring the CAMPFIRE program. 

Despite these problems, "the CAMPFIRE program is much more suc- 
cessful in terms of poverty alleviation and biodiversity protection than 
all the prior attempts to develop nature reserves from which human use 
is excluded. Actually both the CAMPFIRE program and CBNRM pro- 
gram reviewed below were conceived not only as programs geared 
toward wildlife management but also as programs aimed at rural devel- 
opment and good governance. The purpose of these programs is to 
develop local management systems by mobilizing participatory 
processes and accountable leaders and by instilling a belief in people 
that they are in charge of their destiny. 84 

Namibia 's Experience: The CBNRM Program 

Namibia's Community-Based Natural Resources Management (CBNRM) 
Program was launched in the early 1990s when the newly created Ministry 



80 Just over 53 percent of the revenue is allocated to sub-district units. 
Maveneke, supra note 72. 

81 Ten percent of the proceeds remain unallocated. Id. 

82 Id. 

83 See Testimony of Dr. Teresa Telecky, supra note 23. See also supra note 76. 

84 Brian T.B. Jones, "Community Management of Natural Resources in 
Namibia," (Scandinavian Seminar College's Africa Project, 1999), available online 
at iied. org/pdf/dry _ip90english.pdf. 



84 Biodiversity and Human Rights 

of Wildlife Conservation and Tourism carried surveys to identify com- 
munity perspectives on wildlife management. 85 Because Namibia does 
not have administrative state subdivisions as clearly delineated as those 
of Zimbabwe, the law provides that any group of people residing in 
communal land could decide to have that land declared a conservancy 
by the Ministry of Environment and Tourism. 86 To have a communal 
land be declared a conservancy, the community has to go through an 
application process in which it has to provide the government with 
assurances that it can manage the land effectively. This involves pro- 
viding the government with its listed membership, constitution, designed 
boundaries, administrative and financial competence, sustainable man- 
agement and utilization objectives, and proof for accountability and 
transparency. 87 

Conservancies have existed in Namibia since 1968 but the concept 
applied to private property. A conservancy was officially defined in 1991 
as a group of farms in which neighboring landowners have pooled their 
resources for the purposes of conserving and utilizing wildlife on their 
combined properties. These farms, it was eventually decided, could be 
private or communal. 88 

The first communal area conservancy was officially established in 
1997 and by mid- 1999 four more conservancies were formed. 

The experience gained by Zimbabwe's CAMPFIRE program has 
been useful in Namibia. For instance, CAMPFIRE officials have 
advised that management and authority in the conservancies must rest 
in the lowest possible unit and that it is preferable if communities keep 
100 percent of the income they generate without having to share it with 
the government. It was suggested also that the cash must be paid to each 
head of household who, in turn, must return the portion of the income 



85 Id. 

86 M.W. Murphree & S.C. Metcalfe, Conservancy Policy and the CAMPFIRE 
Programme in Zimbabwe (Center for Applied Sciences, University of Zimbabwe, 
Mar. 1997). 

87 Id. 

88 Id. 



Evaluation of Biodiversity Protection Methods 85 

agreed upon for community purposes. This way each member knows 
how much he gets and how much goes to the community. 89 

Some claim that the conservancy model presents many advantages 
that are lacking in CAMPFIRE. The pre-ordained administrative struc- 
ture of CAMPFIRE sometimes thwarts cooperation between areas even 
when such cooperation makes sense. The conservancy approach pre- 
sents then the opportunity to go beyond rigid administrative boundaries 
to establish "strategic management zones" mandated by ecological and 
financial considerations. 90 

Establishing conservancies, though, is not an easy process. Some- 
times it takes years for neighboring communities to decide the bound- 
aries of a conservancy. Deciding the boundaries of a conservancy is 
becoming a difficult task due to the population increase in Namibia that 
has transformed many communal lands into open access areas. 91 

In terms of financial rewards per household from involvement in the 
CBNRM program one thing is sure: the CBNRM program is not the 
final answer to the alleviation of poverty in communal lands. The money 
provided, though, through the program, is essential for households to 
which even a few hundred dollars more per year can make a significant 
difference. 92 

4.2. Privatization as Reduction of Government Overload: 
The Private Conservancies 

Conservancies were developed in private land in Zimbabwe, Namibia 
and South Africa 93 much before the communal programs for the man- 



89 Jones, supra note 84. 

90 Murphree, supra note 86. 

91 Jones, supra note 84. 

v Id. 

93 In South Africa private conservation started in the 1900s. In Namibia con- 
servancies existed since 1968. In Zimbabwe the process of creating conservancies 
started in the late 1980s well before the creation of the Rural District Councils. See 
Murphree, supra note 86. 



86 Biodiversity and Human Rights 

agement of resources. While the conservancies in communal land work 
like cooperatives in which members receive dividends from a joint com- 
pany, conservancies in private land resemble more communally man- 
aged property. Landowners still keep ownership of their land and control 
of the wildlife but have agreed to pool their properties and resources 
together to create large and well-managed areas for the appropriate man- 
agement of the wildlife. Private conservancies are based on a contract 
among the landowners of a specific area to manage wildlife commu- 
nally within that area. Non-governmental organizations have supported 
the development of private conservancies as a means of wildlife man- 
agement where traditional state enforcement has failed. As mentioned 
before, cash-stripped states have enforced environmental laws strictly 
but not consistently since it requires a tremendous amount of resources 
to monitor large and treacherous areas of land. 

Large private conservancies have been promoted in Namibia, South 
Africa and Zimbabwe as a means to manage wildlife privately but in con- 
ditions that do not resemble the zoo-like environment of smaller ranches. 
In Namibia twelve conservancies cover a land of 1 .2 million hectares. In 
Zimbabwe, an increasing number of conservancies cover a land of more 
than 6,000 square kilometers. The Save Conservancy in Zimbabwe cov- 
ers an area of 340,000 hectares. 94 The transaction costs involved in nego- 
tiating private conservancies are as substantial as the transaction costs 
involved in negotiating communal conservancies. In some cases conser- 
vancies owe their existence to the efforts of NGOs who are seeking to 
find a home for the protection of an endangered species. 95 

This is the case in Zimbabwe where two NGOs — the UK-based Beit 
Trust and WWF-Zimbabwe— played crucial roles in supporting the 
development of private conservancies as a home for the about to become 
extinct black rhino population. 96 This happened at a time when the cat- 



94 Kay Muir-Leresche & Robert H. Nelson, Private Property Rights to Wildlife: 
The Southern African Experiment 1 6 (International Center for Economic Research, 
April 2000). 

55 Id. 

96 Michael De Alessi, Private Conservation and Black Rhinos in Zimbabwe: 
The Save Valley and Bubiana Conservancies (Institute of Economic Affairs, 2000), 
available online at http://www.iea.org.uk. 



Evaluation of Biodiversity Protection Methods 87 

tie ranchers in Zimbabwe — who had suffered a damaging drought in the 
beginning of the 1990s — were willing to consider the alternative of 
wildlife management to cattle ranching. 97 

Wildlife management is granted to conservancies comprised of two 
or more landholders who sign an agreement to engage in the joint man- 
agement of wildlife. Each conservancy also signs an agreement with the 
state. In the strict legal sense wildlife is still not owned by anyone {res 
millions), but it could be said that the landowners who control and man- 
age the wildlife have become the de facto owners of the wildlife. This 
is so with the exception of the rhino population who is still under state 
protection as specified in the agreements between the landowners and 
the state. 98 

The development of private conservancies has benefited the rhino 
population. Since the formation of the conservancies and their reloca- 
tion in conservancy territory the black rhino numbers are growing in 
Zimbabwe showing that privatization can work where other wildlife pro- 
tection methods fail. 99 Privatization should eventually benefit private 
landowners. According to a 1994 Price Waterhouse report, it was esti- 
mated that the return on capital from cattle could range from 1 to 3 per- 
cent while the return on capital from wildlife could be at 1 1 percent. 100 

However, such returns have yet to materialize. The reintroduction of 
the buffalo and other wildlife in the conservancies has triggered com- 
plaints about the risk of spreading disease beyond the conservancies in 
the communal areas that surround conservancy territory. To prevent the 
spread of disease, the conservancies had to erect a veterinary fence elec- 
trified at 5000v. 101 The creation of the fence put the conservancies under 
immediate financial pressure, since it required a significant amount of 



97 


Id. 


98 


Id. 


99 


Id. 


100 


Id. 



101 H.J. Goodwin, I.J. Kent, K.T. Parker & M.J. Walpole, Tourism Conservation 
& Sustainable Development: Volume IV, The South-East Lowveld, Zimbabwe (April 
1997, unpublished manuscript, available on file with the author). 



88 Biodiversity and Human Rights 

capital and increased complaints from the surrounding communities. 
Even today the local communities feel that the private landowners have 
isolated themselves behind electrified fences that have prevented the 
people from accessing the resources. 102 

Issues of equity have marred private conservancies since their incep- 
tion. In Namibia 6,000 largely white owners occupy 40 percent of the 
land. In Zimbabwe 4,500 white landowners occupy 35 percent of the 
land including the best farmland in a nation of 12 million people. 103 It 
is not surprising then that the majority of the people view the private 
conservancies as just another way to benefit the wealthy white landown- 
ers and serve the conservationists who have an interest in African 
wildlife. Zimbabwe's government has adopted an ambivalent attitude 
toward the conservancies — supporting them because of the promise of 
future returns including foreign exchange and simultaneously sabotag- 
ing them by threatening to adopt laws that would strip private landown- 
ers of their effective control over the land and resources. 104 

Overall, the ambivalence of the law about the ownership of the 
wildlife and demands for land redistribution have undermined investors' 
confidence in the conservancy concept. The absence of black entrepre- 
neurs in the conservancies has politicized the issue even more. 105 This 
general climate of uncertainty is unlikely to help in the future develop- 
ment of private conservancies. 

4.3. Privatization and the Wildlife Industry 

The private management of wildlife resources through communal and 
commercial programs has contributed to the success of the wildlife 
industry in the Southern African countries. The wildlife industry — 
which includes ecotourism, mass tourism, safari hunting, sale of live 
game, meat and other products— is thriving in all three Southern African 
countries (Zimbabwe, Namibia, and South Africa). In South Africa, for 



io 2 Id. at 115-16. 

103 Muir-Leresche, supra note 94, at 20-2 1 . 

104 Id. 

105 See Murphree, supra note 86. 



Evaluation of Biodiversity Protection Methods 89 

instance, 5,000 foreign hunters spent about $22 million in 1997. The 
sale of live game for the purposes of restocking other ranches earned 
$809,262. 106 In Zimbabwe tourism is the most rapidly growing sector 
of the economy and the main source of foreign exchange. In 1998, the 
revenues from tourism amounted to 7 percent of the GNP and direct 
employment from tourism was 80,000 jobs (8 percent of the total 
employment). Private conservancies have created more jobs than cattle 
ranching. For instance, the Save Conservancy in Zimbabwe employed 
350 people in cattle ranching but it is now estimated that lodges within 
the conservancy will provide 1,200 tourism-related jobs. 107 In terms of 
the wildlife activities that are the most profitable, it is estimated that 90 
percent of the revenues in the CAMPFIRE program come from leasing 
sport-hunting rights to commercial safari operators. 108 While the sys- 
tematic collection of data is still incomplete, it is estimated that the 
wildlife industry is a growth industry with increasing demand and com- 
modity prices. This is in sharp contrast with the beef industry that has 
been experiencing diminishing demand and prices over the last two 
decades. Overall, the wildlife industry is an industry in which develop- 
ing countries have a comparative advantage. The further privatization 
of the industry and stimulus from local management programs accom- 
panied with free trade in wildlife products will allow countries to fully 
benefit from this comparative advantage. 

To take full advantage of the wealth created by the wildlife industry, 
commentators have proposed that innovative ways must be pursued to 
link the communal management of resources with the private conser- 
vancies. Trans-tenure conservancies, conservancies that involve com- 
mercial and communal farmers, have been proposed as an alternative to 
the separation of private landowners from communal farmers. The ques- 
tion now is how to get communal farmers to acquire equity in the con- 
servancies since they do not have formal ownership of the land or 
formal ownership of the wildlife in the areas they occupy. 109 



106 Muir-Leresche, supra note 94, at 14-1 5. 

107 Goodwin, supra note 1 1 , at 114. 

108 Maveneke, supra note 72. 

109 



Murphree, supra note 86 (the Save Valley Conservancy has proposed a 
structure that would formally bind the Conservancy with its neighbors. Five Rural 



90 Biodiversity and Human Rights 

4.4. Biodiversity for Wealth: The Successful Privatization 
of Wildlife Management 

Overall, even programs that support the appropriation of resources by 
locals as a method of wildlife management and distribution of wealth 
will malfunction if the institutions of a country are corrupt and if the 
beneficiaries are not well identified. To become successful, privatization 
of wildlife management must meet certain conditions: 

• The existence of resources that can be readily managed. 
Resources that can be segregated and divided among local 
inhabitants/units are easier to privatize. 

The existence of a community in the case of privatization of 
communal lands. Community management is not possible if the 
people involved do not constitute a community, are fractionally 
divided and the profits end up in the hands of the few wealthy. 
The existence and recognition of local institutions that are rep- 
resentative of the people who actually manage the resource. 

• Secure land tenure. ' 10 Secure land tenure does not necessarily 
mean ownership. It means that people who manage the wildlife 
must have secure and long-term arrangements with regard to the 
land in which they manage the wildlife; 

The identification, participation, and compensation of marginal 
actors (e.g., minority communities) that may shoulder the costs 
of biodiversity protection. 
Respect for the human rights of all affected stakeholders. 

Privatization, in other words, cannot happen in a vacuum. It must take 
into account the political circumstances of the country involved. Political 



District Councils have decided to work with the Save Conservancy in a Joint 
Working Committee. Several ways have been proposed to have local communities 
become investors in private conservancies, for instance: 

( 1 ) the government could grant wildlife to the conservancies as an equity invest- 
ment on behalf of the communities; 

(2) communal lands could be invested in the conservancies rendering local com- 
munities shareholders in the conservancy venture). 

110 See Chapter 1, Section 3.3.2. 



Evaluation of Biodiversity Protection Methods 91 

considerations are bound to decrease the efficiency of privatization 111 
and delay its application but addressing them within the privatization 
program will contribute to the long-term viability of privatization. 
Moreover, it would defeat the purpose of a privatization program, as it 
is envisioned here, if privatization becomes a means to override human 
rights considerations. Privatization programs that enclose an area of the 
land while the rest of the population is starving outside could be as cruel 
as nature reserves and will be undermined eventually by the same pop- 
ulations that resent today's secluded protected areas. Privatization as 
exclusion is even worse than public nature reserves, since it is armed by 
the will of profit-motivated landowners which is bound to be more effec- 
tive than that of the slow and often corrupt state bureaucracies. 

5. RESTORATION AS A BIODIVERSITY PROTECTION 

METHOD 

At first, restoration seems to be at odds with biodiversity protection. It 
seems that if ecosystems need to be restored we have lost the battle to 
protect them. 

As development proceeds in a rapid pace, though, and many ecosys- 
tems are degraded to the point that they cease to be productive, restora- 
tion will become the most applied method of ecosystem management. 1 12 
According to a conservative estimate, 758 million hectares exist in the 
tropics with potential for restoration." 3 Countries such as Nigeria, 
Rwanda, and Madagascar can expand their forests, if they desire to do 
so, through planting and regeneration. 

The criterion for successful restoration must not depend on whether 
the reconstructed community resembles the original. But instead, on 



'" See Paul Starr, "The Meaning of Privatization," 6 Yale Law and Policy 
Review 6 (1988). 

112 John Cairns Jr., "Introduction," in The Recovery Process in Damaged 
Ecosystems 1 (John Cairns Jr. ed., 1980). See also William R. Jordan 111, "Ecolo- 
gical Restoration," in Biodiversity 31 1 (E. O. Wilson ed., 1988). 

113 Lawrence S. Hamilton, "Restoration of Degraded Tropical Forests," in 
Environmental Restoration: Science and Strategies for Restoring the Earth 1 13, 
117 (John J. Bergered., 1990). 



92 Biodiversity and Human Rights 

whether the restored community is able to perpetuate itself; whether it 
can resist invasion; whether it can be as productive as the original. 1 14 
Sometimes restoring ecosystems may involve letting nature take its 
course. In other cases it may involve more intensive management. The 
restorer is like a farmer. S/he uses all the technology available to speed 
up the restoration process to achieve what is socially desirable. In 
severely degraded ecosystems the primary goal may be prevention of 
erosion. In areas with abundant human habitation, it may be socially 
desirable to restore an easily manageable ecosystem rather than the orig- 
inal ecosystem. For example, in the case of a degraded agricultural land 
that was developed on a previously forested area, restoration may not 
involve the return to the forest but to the field's original productivity. 115 

Restoring viable ecosystems is not a simple process. Creating ecosys- 
tems cheaply and quickly involves an understanding of the factors that 
guarantee the reparation of the ecosystem. 1 16 The more these factors are 
understood, the less costly restoration will be. 

Because restoration is rarely attempted for the recreation of the "orig- 
inal" ecosystem," 7 it is not viewed as a true conservation method. 
Ecologists refuse to see restoration as a subject worthy of their atten- 
tion. 118 According to them, restoration has nothing to do with conser- 



114 J. Ewel, "Restoration is the Ultimate Test of Ecological Theory," in 
Restoration Ecology: A Synthetic Approach to Ecological Research 31 (William R. 
Jordan 111, Michael E. Gilpin & John D. Aber eds., 1987). 

115 See William R. Jordan III et al., "Restoration Ecology: Ecological Res- 
toration as a Technique for Basic Research," in Restoration Ecology, id. at 3. 

116 A.D. Bradshaw, "Restoration Ecology: An Acid Test for Ecology," in 
Restoration Ecology, id. at 23. 

1,7 While restoration can occasionally bring back "authentic and original" sys- 
tems, this is often not practical because of the costs involved. Furthermore, from 
a social perspective, restoration faithful to the original landscape may not be 
desirable. 

1 1S Restoration is often presented as a technical problem rather than as a con- 
servation method. Engineers who engage in restoration refuse to see any use in the 
ecological approach and ecologists consider land reclamation a subject unworthy 
of their attention. &eA.D. Bradshaw, "The Reclamation of Derelict Land and the 
Ecology of the Ecosystems," in Restoration Ecology, supra note 1 14, at 53. 



Evaluation of Biodiversity Protection Methods 93 

vation since it is impossible to bring back the climax ecosystem after its 
destruction. Despite these objections, restoration is increasingly becom- 
ing the centerpiece of biodiversity protection. In many cases nature 
reserves exist because of extensive restoration efforts. 

6. PROTECTING NATURE OUTSIDE NATURE: 

GENE BANKS 

Gene banks were developed in the 1970s and 1980s to preserve bio- 
diversity that would otherwise disappear. The first gene banks were 
developed in Europe 1 19 for the same reason that makes them now indis- 
pensable in developing countries — the scarcity of land. Farmers, apply- 
ing modern agricultural techniques to feed a rising population, were 
quick to discard traditional varieties. 120 The diversity of traditional crops 
was in danger and needed to be preserved. 121 

The purpose of gene banks is to keep safe and in good condition the 
seeds of traditional landraces and other varieties so that they can be used 
for future breeding and genetic engineering. Gene banks concentrate on 
traditional and advanced agricultural varieties and their wild relatives 



Ecology is generally viewed as a subject on the complexity of the ecosystems. 
Ecology is taught by introducing students to the holistic nature of ecosystems rather 
than by presenting how from simpler parts whole systems can be made. Restoration 
ecology involves exactly that: the inquiry of how parts fit into the whole. See John 
L. Harper, "The Heuristic Value of Ecological Restoration," in Restoration Ecology, 
id. at 35. 

1 ,9 The earliest collection of crop plants was assembled by Philippe de Vilmorin 
at Verrieres near Paris in the mid-nineteenth century. Subsequently collections were 
established in England, Germany, Sweden, and Australia. These collections con- 
sisted mainly of landraces obtained by plant scientists from other countries. The 
first systematic collection was developed by Vavilov in Russia. See Ottto H. Frankel, 
Anthony H.D. Brown & Jeremy J. Burdon, The Conservation of Plant Biodiversity 
98(1995). 

120 Miguel A. Alteri & Laura C. Merrick, "Agroecology and In Situ Con- 
servation of Native Crop Diversity in the Developing World," in Biodiversity 361 
(E.O. Wilson ed., 1988). 

121 See generally Donald L. Plucknett et al., Gene Banks and the World's Food 
(1987). 



94 Biodiversity and Human Rights 

that are either under-used or under the threat of extinction. 122 Gene 
banks have been instrumental in the preservation of food crops. When 
wars decimate indigenous germplasm, gene banks intervene to rehabil- 
itate the farming sector of the war ravaged country. For instance, the 
International Agricultural Research Centers have provided assistance 
when seeds of a variety of sorghum called zera zera were destroyed in 
an attack on a gene bank in Ethiopia during a political upheaval. Similar 
assistance was provided to Nicaragua and Cambodia after periods of 
social disruption. 123 

Today a total of 1,308 gene banks have been established worldwide. 
Worldwide holdings of crop germplasm amount to 4.4 million acces- 
sions, but the number of unique samples is smaller due to duplication. 124 
Germplasm collections have been established in 130 countries, and the 
most unique collections are located in the International Agricultural 
Research Centers. 125 

Usually, gene banks preserve seeds at low-temperatures, but they can 
preserve seeds also in the field or in vitro. DNA banks are an alterna- 
tive to traditional gene banks. DNA banks can preserve DNA sequences 
and whole genomes for research. 126 



>» Id. at 17-18. 



123 See generally Ramesh Jaura, "Rwanda-Agriculture: North, South Cooperate 
to Revive Farming," Inter Press Service, May 22, 1995; Fred Powledge, "The Food 
Supply's Safety Net," 45 (No. 4) Bioscience 235, April 1995; H. Carrison Wilkes, 
"Plant Genetic Resources Over Ten Thousands Years," in Seeds and Sovereignty 67, 
86, (Jack R. Kloppenburg Jr. ed., 1988). 

124 See Report on the State of World's Plant Genetic Resources, April 22-27, 
1996, CGRFA-EX2/96/2 [hereinafter Report]. 

125 Id. 

126 DNA banks present the following advantages: DNA sequences can be stored 
indefinitely without requiring regeneration. Stored DNA samples could be freely 
imported for research purposes since they are not subject to the quarantine regula- 
tions that apply to plants and seeds. But reliable documentation is crucial for the 
use of DNA samples. While plant collections can be used even if their characteris- 
tics have been recorded inaccurately, the use of DNA samples depends on reliable 
information. Also the use of the samples requires a greater degree of technical 
knowledge. In order to develop DNA banks scientists must know which character- 



Evaluation of Biodiversity Protection Methods 95 

For gene banks to be useful, they must carry information on the 
germplasm they contain. Every germplasm must be accompanied by 
what is called passport data — which includes information on how the 
germplasm was obtained and the site of origin. 127 Germplasm must be 
checked periodically to verify whether it is still viable. 128 Further evalu- 
ation of the germplasm may be needed to identify the reactions to physi- 
cal stresses, pathogens, and predators. 129 But the evaluation of germplasm 
accessions is not performed as consistently as it should. 130 Most collec- 
tions lack precise information regarding the place of origin of the seeds 
they contain. 131 It is estimated that information is complete for only 1 per- 
cent of the germplasm contained in gene banks. 132 In addition gene banks 
are vulnerable to natural disasters and war. Gene banks may face short- 
age of electricity, since gene banks preserve collections at low tempera- 
ture, a prolonged power shortage could destroy their collections. 133 Other 
problems include lack of storage space and computer failure. 134 



istics of the plant they wish to preserve. Overall DNA banks cannot assist in the 
regeneration of species and could not be used today for their revival. For this rea- 
son, while it is important to develop an international network of DNA repositories, 
DNA banks are not an alternative to traditional gene banks even if the latter are 
more expensive. See Frankel, supra note 1 19, at 1 10-1 1. 

127 Material that arrives in poor condition must be multiplied before storage. 
Seeds to be stored must be of high quality and of maximum viability. Id. at 1 13. 

128 But because of the high costs of regeneration, researchers must strike a bal- 
ance between the risk of losing a viable seed and regeneration. Id. at 90-91 . 

129 Id. at 114. 

130 Extensive evaluation of accessions does not exist and the information that 
exists is not readily available. See Report, supra note 124, at 9. 



131 



See Frankel, supra note 1 1 9, at 1 06. 



132 Peter S. Ashton, "Conservation of Biological Diversity in Botanical 
Gardens," in Biodiversity 269, 275 (E.O. Wilson ed., 1988). 

133 Plucknett, supra note 1 2 1 , at 8 1 . 

134 Forty-six percent of accessions held in national collections need regenera- 
tion. See Commission on Plant Genetic Resources, Sixth Session, Item 8 of the 
Provisional Agenda, Survey of Existing Data on Ex Situ Collections of Plant 
Genetic Resources for Food and Agriculture, June 19-30, 1995, CPGR-6/95/8 
Annex (CPGR-Ex 1/94/5 Annex). 



96 Biodiversity and Human Rights 

Even national programs in developed countries, 135 lack the financial 
security and ability to plan ahead due to budget uncertainties. In most 
countries gene bank policies are developed on an ad-hoc basis and lack 
coherence. The lack of training restrains also many national programs. 

In order to insure against national gene bank failure, efforts have been 
made to internationalize gene bank management through the 
International Agricultural Research Centers. Also efforts have been 
made to insure against the destruction of collections. Most gene banks 
today, to be on the safe side, save a large number of seeds to the point 
of creating excessive overlap and sacrificing valuable space. 136 Some 
gene banks are building back-up cooling equipment and generators and 
some countries are experimenting with storing germplasm in naturally 
cold and dry locations. 137 

Gene banks have been instrumental in preserving food crops but not 
in preserving wild species. This is because the value of many wild 
species is not known and the techniques to maintain and regenerate wild 



135 It is not only collections in developing countries that face problems. In the 
United States the National Seed Storage Laboratory (NSSL) is renowned for its 
twelve-inch reinforced concrete walls, vault doors, security systems and it can with- 
stand tornadoes, earthquakes, vandalism and terrorism. Expensive infrastructure, 
however, does not compensate for good organization. According to critics, the 
germplasm collection is poorly organized. Many accessions lack passport and char- 
acterization data. In addition, over 25 percent of the accessions are not available 
and this number is increasing. Some evaluation data do not exist due to the short- 
age of personnel. The collapse of communism in Eastern Europe has put the col- 
lections of those countries in serious trouble. See Powledge, supra note 123. 

136 The accessions of the Center for the Improvement of Maize and Wheat 
(CIMMYT) contain between 5,000 and 17,000 seeds. The International Rice 
Research Institute (IR.R1) preserves between 5,000 and 8,000 seeds per accession. 
The obsession with the high number of seeds derives from the realization that gene 
banks, like all human institutions, are vulnerable. The danger that gene banks may 
be destroyed increases the value of duplicate collections held at different locations. 
These duplicate collections can serve as a back-up mechanism in the event of power 
failure, fire or other hazards and disasters. See Plucknett, supra note 121, at 81. 

'37 Id. at 83. 



Evaluation of Biodiversity Protection Methods 97 

species are not very advanced. 138 Botanic gardens are geared more 
toward the protection of wild species. 

Approximately 1,500 botanical gardens exist today of which nearly 
700 contain germplasm collections. Botanical gardens face problems 
that are similar to the problems faced by gene banks. Many botanical 
gardens do not have information on their collections and lack space and 
facilities. 139 They are hampered also by policy and staff changes. 

As analyzed in Chapter 4, the seeds kept in gene banks are today the 
subject of controversy. Some developing countries seek to repatriate 
these seeds, attempt to control the transfer of these seeds, and to avert 
the assertion of intellectual property rights over the modification of the 
seeds. Such efforts and their repercussions on innovation and food secu- 
rity are explored in detail in Chapter 4. 

7. COMPARING AND CHOOSING BIODIVERSITY 

PROTECTION METHODS 

Three measures are used to compare the desirability of using nature 
reserves, landscapes, privatization, gene banks, and restoration for the 
purposes of international biodiversity management: respect for human 
dignity, the effect on the wealth of the local population, and biodiver- 
sity protection. 

Human Dignity 

Nature Reserves: Nature reserve management scores low in terms of 
compliance with the standards dictated by human dignity and human 
rights. This is because nature reserves are often established under gross 
violations of human rights. Even recent efforts to involve locals in the 
management of nature reserves have not impressed the people who seek 
control over their own affairs. 



138 Report, supra note 124, at 56. 

139 J.E. Hernandez Bermejo, Information on Ex Situ Collections Maintained in 
Botanic Gardens iv (Commission of Plant Genetic Resources for Food and 
Agriculture ed., 1996). 



98 Biodiversity and Human Rights 

Landscapes and Privatization of Wildlife: Replacing nature reserves 
with landscapes and a genuine effort to include local people in their 
management through privatization and secure land tenure could con- 
tribute in changing perceptions that biodiversity protection is all about 
protecting wildlife with little regard about the people who are making 
a living out of it. 

Privatization can cure many of the ills of conservation as practiced 
until today. Privatization, though, can succumb also to the opportunism 
of private or communal landowners who may attempt to exclude other 
legitimate landholders or who may accumulate the profits for the bene- 
fit of an elite minority rather than the disadvantaged majorities. 

Restoration: Restorative efforts in nature reserves could provoke 
human rights concerns, especially if it is believed that the way to restore 
a degraded area is to prevent people from using it. Most frequently, 
though, restoration is performed in areas that are so degraded that are 
of little interest to conservationists and local populations. 

Gene Banks: Gene banks can hardly impose any human rights threats. 
On the contrary, as analyzed below, gene banks can benefit the poor of 
the developing world especially after wars and natural disasters. 
International gene banks, however, have been the subject of controversy 
when the seeds they freely provide end up in the hands of multinational 
corporations. Multinational corporations, after modifying such seeds, 
often declare quite expansive intellectual property rights over them. The 
affirmation of intellectual property rights over modified germplasm has 
been called "biopiracy." Chapter 4 analyzes the issues of access to 
germplasm, intellectual property rights and mechanisms for the com- 
pensation of indigenous peoples and farmers. 

The Wealth Effect 

Nature Reserves: Nature reserves have not brought the promised wealth 
to local communities. The propagated non-consumptive uses of nature 
reserves, such as extractivism and bioprospecting, are not as lucrative 
as initially promised and have disappointed local communities. The 
wealth brought by these activities is not even comparable to the wealth 
brought by traditional consumptive uses such as agriculture, grazing and 



Evaluation of Biodiversity Protection Methods 99 

tourism. For instance, the total value of INBio's activities in Costa Rica 
is $1 million— a minimal amount compared to the revenues generated 
by forestry and tourism. Costa Rica's forestry industry generated $28 
million while its tourism generated $421 million. 140 

Landscapes and Privatization of Wildlife Management: The Zimba- 
bwean efforts to privatize wildlife seem to be the most promising in 
terms of increasing the wealth of the local population. Privatization of 
wildlife in communal or private lands can bring wealth as landowners 
and communities become involved in the wildlife trade and the tourism 
industry. How much privatization accomplishes in terms of benefits to 
local populations depends on how it is applied. Unless privatization is 
performed in a manner that addresses social equity issues and commu- 
nity empowerment, it could become the subject of severe criticism and 
eventually fail. All privatization programs, since they are envisioned as 
a remedy to the ills caused by nature reserves, must be performed with 
full respect of human rights. 

Restoration/Gene Banh: Restoring degraded ecosystems can bring 
wealth to local communities. Many restoration efforts have already been 
successful in re-establishing productive ecosystems. And many gene 
banks have been able to preserve seeds that have been used to produce 
enhanced varieties and to rejuvenate the agricultural sector of develop- 
ing countries after periods of war and natural disasters. 

Ability to Protect Biodiversity 

Nature Reserves: As mentioned before, many natural ecosystems in the 
tropics are "disturbance-dependent" and thrive under what are perceived 
by humans to be catastrophes. Sometimes, though, human impacts are 
so intense and prolonged that they actually succeed in converting 
ecosystems. This is what agriculture has done to forest ecosystems all 
over the world for centuries. Nature reserves that are not impacted by 
systematic human efforts to convert them could become the vehicle to 
preserve the evolution of biodiversity. The problem with such reserves 



140 John Eberlee, "Assessing the Benefits of Bioprospecting in Latin America," 
Jan. 21, 2000 (International Development Research Center, 2001), available online 
at http://www.idrc.ca/reports/read_articte_eitglish. cfm?art_intm=609. 



100 Biodiversity and Human Rights 

is that they are often established under gross violations of human rights 
and without tolerance for any use, even traditional use, that actually ben- 
efits the reserve. 

Landscapes: Landscapes that are tolerant of human habitation/use 
are an alternative way to protect biodiversity without alienating the peo- 
ple who make a living out of it. While landscape management is not free 
of conflicts, it starts from the premise that humans and nature can co- 
exist, and thus it is preferable from both a biodiversity protection and a 
human rights viewpoint. 

Privatization of Wildlife 

Privatization of wildlife has done wonders for the preservation of endan- 
gered species. As analyzed above, endangered species have rebounded 
dramatically under privatization efforts in Zimbabwe, Namibia, and 
South Africa. 

Restoration and Gene Banks 

Gene banks and restoration are becoming the future means of protect- 
ing biodiversity, but they are limited in what they can do in terms of 
regenerating ecosystems lost, as some would desire. Regenerating 
ecosystems lost is not always feasible and many times not even socially 
desirable, and emphasis must be placed on restoring the productivity of 
ecosystems and on supporting ecosystems that can sustain themselves 
in the long-term. Supporting the development of stable and productive 
ecosystems is the purpose of restoration. 

Gene banks can help bring back species that may have disappeared 
during wars or simply because the farmers have chosen to neglect them 
to concentrate on more productive species. Gene banks also could get 
more involved in the protection of wild species with known useful prop- 
erties. In general, as "natural habitats" disappear, gene banks could 
become instrumental in the protection of a great amount of biodiversity 
whose properties are deemed worthy of protection. 

International biodiversity management policies must take into 
account the shortcomings and advantages of all the biodiversity pro- 



Evaluation of Biodiversity Protection Methods 101 

tection methods and must allow for the use of a wide range of tools to 
encourage restoration, prevention of conversion and gene bank devel- 
opment. Biodiversity protection policies must be based on the admis- 
sion that "not all biodiversity can be 'saved' as is" and that conversion 
must be allowed in many instances to accommodate for the needs of the 
poor in the developing world. 

In more detail, it is proposed that: 

• Privatization and local management of protected landscapes 
based on human dignity values must be preferable over secluded 
nature reserves; 

• Gene bank management must be supported further on an inter- 
national scale; 

• Restoration must be acknowledged as a legitimate method of 
biodiversity management. 

As the human population increases, the future of biodiversity pro- 
tection is not in segregating the land but in integrating it to produce the 
optimal amount of benefits. Such benefits have to include the satisfac- 
tion of the immediate needs of humans who live in biodiversity areas. 
People have managed and will continue to manage ecosystems to pro- 
duce what they desire: wildlife, timber, recreation and agriculture. It is 
impossible to conceive of ecosystems that are not or will not be man- 
aged intensively to satisfy human needs. 



Chapter 3 

International Rules for National 

Conservation 



1 . INTERNATIONAL TREATIES FOR BIODIVERSITY 

PROTECTION: THE TRIUMPH OF NATIONALISTIC 
CONSERVATION 

All international and regional instruments on biodiversity protection 
have the following characteristics: 

They contain vague clauses so as to give states wide latitude in 
balancing environmental and development considerations. 
They focus on in situ conservation as the best means of biodi- 
versity protection. 

They do not use human dignity values to evaluate biodiversity 
protection policies. 

They rarely mention gene banks or restoration. 
They impose restrictions and prohibitions but leave it up to states 
to decide about the appropriate level of enforcement. 
They lack effective monitoring mechanisms to check the actual 
enforcement and implementation by the states.' 
Most of the pre-UNCED 2 instruments focus on specific regions, 
species and habitats. The Convention on Biological Diversity 3 
was the first treaty to address biodiversity as a global matter. 
The Biodiversity Convention was adopted in 1992 during the 
UNCED conference. 



1 This is why some states decide to strictly enforce the treaties while other 
states are less than willing to devote resources to enforcement. 

2 The United Nations Conference on Environment and Development 
(UNCED) that took place in 1992 provided the impetus for the adoption of new 
instruments that renewed the focus on conservation. 

3 Convention on Biological Diversity, June 5, 1992, reprinted in 31 l.L.M. 826 
(1992). 



103 



104 Biodiversity and Human Rights 

State Sovereignty 

All conventions, including the recently adopted Biodiversity Conven- 
tion, 4 give states latitude on how to deal with conservation. States, which 
are the ultimate decisionmakers in the international sphere, are unwill- 
ing to release control over their natural resources to international insti- 
tutions. It is not surprising then that most international treaties are vague 
and, despite the occasional use of stringent language, full of exceptions 
that increase the state's decisionmaking authority. For instance, the 
Convention on the Conservation of European Wildlife and Natural 
Habitats, known as the Bern Convention, 5 provides that states can make 
exceptions to the provisions of the treaty "in the interests of public 
health and safety, air safety or other overriding public interests." 6 A sim- 
ilar article is included in the African Convention 7 that allows for the 
killing or hunting of endangered species under government authoriza- 
tion in accordance with the national interest. 8 In certain cases, treaties 
on conservation become the pretext for coordinating development in a 
region. Such is the Treaty for Amazonian Cooperation. 9 

Nationalism was also obvious during the 1992 UNCED proceedings 
when a Convention on Forests was put on the negotiating table. 
Developing countries balked at the efforts to adopt a forest convention. 
Since forests reside in national territories, a forest convention was 
deemed too intrusive into the national affairs, especially if that conven- 
tion were to focus on the deforestation in the developing world. 
Eventually, a set of Principles was adopted on the protection of all 



4 Id. 

5 Convention on the Conservation of European Wildlife and Natural Habitats, 
Sept. 19,1979, European Treaty Series No. 104, reprinted in IV European 
Conventions and Agreements 181 (Council of Europe ed., 1993). 

6 Art. 9(1). 

7 African Convention on the Conservation of Nature and Natural Resources, 
Sept. 15, 1968, 1001 U.N.T.S. 3. 

8 Art. VII. 

9 Treaty for Amazonian Cooperation, July 3, 1978, reprinted in 17 l.L.M. 
1045(1978). 



International Rules for National Conservation 105 

forests. 10 The Principles affirm the sovereignty of countries over their 
natural resources. ' ' 

The only instruments that derogate from nationalistic conservation 
are the Leipzig Declaration and the Global Action Plan adopted by the 
FAO with regard to agrobiodiversity. 12 Within the international system, 
while diversity in general is the preoccupation of the United Nations 
Environment Program (UNEP) agrobiodiversity is the prerogative of 
the FAO. 

The Global Action Plan adopted by the FAO is heavily influenced by 
the Biodiversity Convention, at least, in oratory. Nevertheless it often 
opts for international biodiversity management. For instance the Plan 
promotes international cooperation in disaster situations and encourages 
the safeguarding of biodiversity resources in international gene banks. 
The Plan clearly recognizes that the evaluation, regeneration and char- 
acterization of the collections located in gene banks cannot be accom- 
plished without international cooperation and the economies of scale 
put together by international efforts. 13 

Structure 

Most conventions share the same structure. Conventions that deal with 
the protection of species do so by classifying the species in annexes. 
Annex I usually includes the species about to become extinct, Annex II 
the species under the threat of extinction and Annex III species under 



10 Statement of Principles for a Global Consensus on the Management, 
Conservation and Sustainable Development of All Types of Forests, June 5, 1992, 
A/CONF.151/26 (Vol.11), reprinted in 31 l.L.M. 881 (1992). 

11 Preamble (e), Art. 1(a). 

12 The Leipzig Declaration and Global Action Plan for the Conservation and 
Utilization of Plant Genetic Resources for Food and Agriculture were adopted by 
the International Technical Conference on Plant Genetic Resources in Leipzig, 
Germany, June 17-23, 1996, available online at http://www.fao.org/WAICENT/ 
FAOINFO/AGRlCULT/AGP/AGPS/GpaEN/Gpatoc.htm. 

13 See also the Interrelationship between the Convention on Biological 
Diversity and the Promotion of Sustainable Agriculture, reprinted in 3 1 l.L.M. 842 
(1992). 



106 Biodiversity and Human Rights 

threat in specific countries. 14 Some conventions provide that specific 
agreements need to be adopted later for the preservation of specific 
species. For example, under the umbrella of the Convention on 
Migratory species, six agreements have been adopted that are dedicated 
to the preservation of specific species. 15 

Treaties on the preservation of habitats are usually structured around 
the lists of the habitats to be protected. The World Heritage Convention 16 
includes two lists: the "World Heritage List" where nature reserves are 
to be listed, and the "List of World Heritage in Danger." But state con- 
sent is required for the inclusion of a state territory in any of these lists. 17 
The purpose of the convention is not to abdicate state sovereignty and 
property rights over Heritage Sites. It is to direct international cooper- 
ation to the conservation of natural heritage sites through the training 



M This is the structure of the CITES Convention. See Convention on 
International Trade in Endangered Species of Wild Fauna and Flora (CITES), Mar. 
6, 1973, reprinted in 12 l.L.M. 1085 (1973). The African Convention has a similar 
structure. Species belonging in Class A "shall be totally protected" throughout the 
territory unless the national interest is at stake. Class B species will also be "totally 
protected" but could also be hunted, killed, captured or collected (Art. VIII), supra 
note 7. 

The Bern Convention includes three Annexes. The exploitation of Annex I 
species is totally prohibited. Annex II prohibits "the deliberate" destruction of the 
species. While under Annex III species are to be regulated to keep their populations 
out of danger, supra note 5. 

15 The Convention on the Conservation of Migratory Species of Wild Animals, 
June 23, 1979, reprinted in 19 l.L.M. 15 (1980), provides that migratory species 
that are endangered must be included in Annex 1. Annex II is to include species of 
an unfavorable conservation status. Annex II species should be protected by spe- 
cific agreements (Arts. II I — IV). The convention provides guidelines on what these 
agreements must include such as monitoring and enforcement mechanisms and the 
maintenance of a network of suitable habitats and procedures to suppress illegal 
taking (Art. V). The agreements that have been adopted attempt to protect: seals in 
the Wadden Sea; bats in Europe; small cetaceans of the Baltic and the North Seas; 
Western and Central Asian Populations of the Siberian crane; slender-billed curlews; 
and African-Eurasian migratory waterbirds. 

16 UNESCO Convention for the Protection of the World Cultural and Natural 
Heritage, Nov. 21, 1972, reprinted in 1 1 l.L.M. 1358 (1972). 

" Art. 1 1 . 



International Rules for National Conservation 107 

of specialists, interest-free loans and the establishment of a World 
Heritage Fund that provides financial assistance to countries in need. 18 

The list structure is also followed by the Ramsar Convention, 19 which 
provides that each state must designate suitable wetlands 20 for inclusion 
in the List of Wetlands of International Importance. 21 The Conference 
of the Parties has already designated 750 sites for conservation — more 
than 500,000 kilometers (the size of France or Kenya) of wetland. 22 

The 1992 European Union Directive follows the list structure. 23 The 
Directive establishes an ecological network of special areas of conser- 



18 See arts. 6( 1), 7, 22, 1 5. The fund established under the convention is very 
small and cannot meet the needs of developing countries. 

19 Convention on Wetlands of International Importance (known as Ramsar 
Convention), Feb. 2, 1971, reprinted in 996 U.N.T.S. 245. 

20 The definition of wetlands is quite broad. According to Article 1 : 

For the purpose of this Convention wetlands are areas of marsh, fend, peat- 
land or water, whether natural or artificial, permanent or temporary, with 
water that is static or flowing, fresh, blackish or salt, including areas of 
marine water the depth of which at low tide does not exceed six meters. 

21 Art. 2(5). 

22 Conference of the Parties to the Convention on Biological Diversity, 
Cooperation Between the Convention on Wetlands of International Importance, 
Especially as Waterfowl Habitat (Ramsar Convention) and the Convention on 
Biological Diversity, Sept. 23, 1996, UNEP/CBD/COP/3/30, at 3. 

23 Council Directive 92/43 EEC of 21 May 1992 on the conservation of nat- 
ural habitats and of wild flora and fauna, July 22, 1992, OJ L 296. Other directives 
that have been adopted within the context of the European Union are: the 
78/409/EEC Council Directive of 2 April 1979 on the conservation of wild birds, 
April 2, 1979, OJ L 103, This directive was amended by Council Directive 
94/24/EC of 8 June 1994 amending Annex II to the Directive 79/409/EEC on the 
conservation of wild birds, June 8, 1994, OJ L 164. See also Council Regulation 
(EEC) No. 3626/82 of 3 December 1982 on the implementation in the Community 
of the Convention on International Trade in Endangered Species of Wild Flora and 
Fauna, Dec. 3, 1982, OJ L 384. 

Other instruments include a Regulation that deals with conservation, characteri- 
zation, collection and utilization of genetic resources in agriculture. According to the 
Regulation, the term "agriculture" must be read broadly to include genetic resources 



108 Biodiversity and Human Rights 

vation in the European Union. 24 It provides criteria (Annex III) accord- 
ing to which countries are to judge which of their habitats (Annex I) and 
which of their species (Annex II) need protection. Furthermore, the 
Commission in agreement with member states is to establish areas of 
Community importance that member states must designate as "special 
conservation areas." 25 Projects with negative environmental implications 
will be allowed in these areas only "for imperative reasons of overrid- 
ing public interest, including those of a social or economic nature." 26 

The Human Dignity Standard/Other Standards 

Most pre-UNCED treaties do not even mention indigenous peoples' 
rights and make no efforts to reconcile biodiversity protection and 
human needs except for the African Convention that, in a limited fash- 
ion, recognizes the need to respect the customary rights of people. The 
African Convention provides that conservation measures should be 
taken with due regard to the best interests of people 27 and that states 
must take measures to reconcile customary rights with the goals of the 
convention. 28 But the convention exhibits paternalistic overtones when 
it mentions that states must ensure that their people understand the need 
and rules for the rational utilization of resources. 

After the 1992 United Nations Conference on Environment and 
Development, international instruments seem to be more cognizant of 



in forestry. According to Article 1(b), plant genetic resources can include, inter alia, 
"ornamental crops, medicinal plants and aromatics, fruit crops, forest trees, fungi, 
micro-organisms and wild flora which are or could be of use in the field of agri- 
culture." See Council Regulation (EC) No 1467/94 of 20 June 1994 on the conser- 
vation, characterization, collection, and utilization of genetic resources in 
agriculture, June 28, 1994, OJ L 159. 

24 Directive 92/43, Art. 3, supra note 23. 

" Id., Arts. 4, 6. 

* Art. 6(4), id. 

27 African Convention, supra note 7, Art. II. 

*> Id., Art IX. 



International Rules for National Conservation 109 

the need to incorporate some sort of recognition of the indigenous peo- 
ples' contributions to biodiversity protection. For instance, the Forest 
Principles recognize that it is important for indigenous peoples to main- 
tain their cultural identity and social organization. 29 And the Bio- 
diversity Convention recognizes the rights of indigenous peoples in 
their knowledge. 30 But none of the treaties, pre- or post-UNCED, 
endorse human rights standards as the benchmark standards of biodi- 
versity protection efforts. 

In addition to the lack of human rights standards, most treaties lack 
specific standards for biodiversity protection. The lack of such standards 
is justified by the fact that standard making in biodiversity management 
is by nature more of a national/local activity than an international activ- 
ity. The lack of standards, though, makes the monitoring and enforce- 
ment of the conventions quite difficult. 

Monitoring/Implementation 

The monitoring of international treaties is often left to a Conference of 
Parties and a Secretariat to which states report their conservation 
efforts. 31 But even treaties that provide for such follow-up mechanisms 
are inadequately monitored. Treaties do not contain standards that will 
help measure the success of states in implementing them, and states are 
often reluctant to report information relating to biodiversity protection 



29 Forest Principles, supra note 1 0, Art. 5(a). 

30 Convention on Biological Diversity, supra note 3, Art. 8(j). 

31 The ASEAN agreement provides for a Conference of Parties and a 
Secretariat (Arts. 21,22, 28.) See Agreement on the Conservation of Nature and 
Natural Resources adopted by the Association of South East Asian Nations, July 9, 
1985, Center for Science Information Network, Environmental Treaties and 
Resource Indicators, available online at http//sedac.ciesin.org/entri. The Ramsar 
Convention (Arts.6-8) provides also for a Conference of Parties and a Secretariat, 
supra note 19. The Convention on the Conservation of Migratory Species and Wild 
Animals provides for the establishment of a Conference of the Parties (Art. VII), a 
Secretariat (Art. IX) and a Scientific Council (Art. VII), supra note 15. The most 
comprehensive monitoring mechanism is provided under the Bern Convention, 
supra note 5. The convention establishes a Standing Committee that is charged with 
the monitoring of the convention (Art. 13). 



110 Biodiversity and Human Rights 

either because they do not have the means to collect it or because bio- 
diversity protection is not of a priority status in their agenda. The lack 
of specific standards and monitoring has made it difficult to fulfill the 
promises to protect biodiversity. For instance many of the sites included 
in the "World Heritage List" have deteriorated to such an extent that 
they are only by name "World Heritage Sites." 32 

The only convention that is closely monitored is the CITES Conven- 
tion which deals with the trade in endangered species. According to the 
treaty, merchants can trade endangered species or their body parts only 
if they meet certain requirements and obtain permits. These require- 
ments become the more stringent the more endangered the species are. 
But again the effectiveness of the treaty has been marred by too many 
exceptions and reservations, 33 permit falsifications, and the inexperi- 
ence and lack of training of the customs personnel. Prohibitions of trade 
under the treaty have been defeated by a lucrative black market that has 
benefited from its links to organized crime. Wildlife smuggling is worth 
$5 billion per year. 34 

Proposals on prohibitions on timber trade are likely to generate sim- 
ilar outcomes. It has been proposed that developed countries must ban 
tropical timber imports from developing countries to save the tropical 
forests. It has also been proposed that if a total ban is unacceptable a 
partial ban on the trade of "unsustainably" collected timber could be 
imposed. 35 But both a total ban and a partial ban present significant 
problems. 

Whether timber has been harvested sustainably depends on the har- 
vesting method applied. Given the large number of timber concessions, 
monitoring harvesting methods will be costly domestically and almost 



32 Jim Thorsell, "From Strength to Strength," in World Heritage Twenty Years 
Later 19,22 (IUCN ed., 1992). 

33 Reservations on provisions protecting specific species essentially legitimize 
trade in species otherwise protected under the convention. See CITES Convention, 
supra note 14, Arts. XXI II, X. 

34 Renee Schaible Lewis, Illegal Trade in Wildlife and Wildlife Products, avail- 
able online at http://www.ecobridge.org/content/s_ill.htm. 

35 See Chapter l,n.98. 



International Rules for National Conservation 111 

impossible internationally rendering the ban ineffective. A total ban has 
been resisted by developing countries since timber extraction is a sig- 
nificant source of revenue. Considering also the current timber trade 
trends, a ban on timber imports into developed countries will have lit- 
tle effect on the overall trade. Most tropical wood in the future will be 
consumed in the developing world and the South-to-South trade will 
replace the South-to-North trade. 36 Therefore, a ban imposed by devel- 
oped countries will have minimal impact on the global tropical wood 
consumption. 

Monitoring is even more difficult under the Biodiversity Convention 
since many provisions of the convention are subject to different inter- 
pretations. The parties to the treaty must submit to the Conference of 
Parties reports on the measures taken to implement the treaty. But such 
reporting will be difficult, first of all, because the objectives of the treaty 
are not clear. Second, efforts to measure the success of biodiversity pro- 
tection must be based on assessments of the existing biodiversity. Such 
accurate assessments do not exist. 37 

Legislation passed by the European Union, like the 1992 Directive 
mentioned above, is likely to be implemented more effectively than the 
international conventions. The member states of the European Union 
share a cultural cohesion and have the support of a strong institutional 
structure. The European Union is a sni generis regional organization or, 
for optimists, a federation. International legal instruments do not often 
have the level of specificity and institutional backing made possible by 
an entity like the European Union. 

Biodiversity Protection Methods 
Gene Banks 

Gene bank development is rarely mentioned in the pre-UNCED treaties. 
The instruments that focus mostly on gene bank management are those 
dedicated to the protection of agrobiodiversity under the auspices of the 
FAO. This is because a lot of agrobiodiversity is already protected in 

36 id. 

37 See infra Section 3. 



112 Biodiversity and Human Rights 

gene banks and gene banks have played a crucial role in revitalizing 
agricultural systems after wars and natural disasters. According to the 
Global Action Plan, 38 a major effort needs to be undertaken to transform 
the inefficient, redundant and disorganized gene bank policies into an 
ex situ conservation system. Under the Global Action Plan gene banks 
must not be just repositories but dynamic centers that would coordinate 
conservation at the national, regional and international level. The Global 
Action Plan calls for planned and targeted collecting efforts that will fill 
the gaps in existing gene banks with useful and endangered germplasm. 39 

Among the post-UNCED instruments dedicated to biodiversity pro- 
tection, the Biodiversity Convention provides that gene bank develop- 
ment should take place preferably in the country of origin 40 reflecting 
nationalistic attitudes for biodiversity protection. The convention also 
views ex situ conservation as a supplemental method of in situ conser- 
vation rather than as a method that could take the lead role in the preser- 
vation of many species. 

Restoration 

Similarly to gene bank management, restoration features only sporadi- 
cally in pre- and post-UNCED instruments 41 more as a supplemental 
method of biodiversity protection rather than as an independent method 
that could make a difference in international efforts. For instance, in the 
Biodiversity Convention in the article dedicated to in situ conservation 
it is mentioned that states "shall as far as possible and as appropriate . . . 
[Rehabilitate and restore degraded ecosystems and promote the recov- 
ery of threatened species, inter alia, through the development and imple- 
mentation of plans and other management strategies." 42 



38 See supra note 12. 

*> Id. at 27. 

40 Convention on Biological Diversity, supra note 3, Art. 9(a). 

41 See, e.g., Art. 9(c), id. 

42 Art. 8(f), id. 



International Rules for National Conservation 113 

Nature Reserves and Landscapes 

Provisions on nature reserve management are, on the contrary, promi- 
nent in most treaties. For instance, the Western Hemisphere Treaty is 
replete with references to "strict wilderness reserves" and obligations 
of state parties to "maintain the strict wilderness areas inviolate." 43 
According to the ASEAN agreement, 44 nature reserves are defined as 
areas that "have not been substantially altered by human occupation and 
exploitation." 45 And the Biodiversity Convention provides that each state 
"shall establish a system of protected areas or areas where special mea- 
sures need to be taken to protect biodiversity." 46 

The World Heritage Convention is the only convention that refers to 
the possibility of reconciling human use and conservation but by sepa- 
rating cultural sites from natural sites, it perpetuates misconceptions that 
nature and culture exist independently of each other. "Mixed sites" and 
"cultural landscapes" are today included under the scope of the con- 
vention; 47 but the proposal to include landscapes within the convention 
framework was met with resistance. Since landscapes exist predomi- 
nantly in Europe it was believed that their inclusion in the convention 
would outnumber any other sites. 48 

The Transnational Management ofTransboundary Resources 

The need to manage resources transnationally is prominent in most con- 
ventions. Many treaties require state parties to consult each other if they 



43 Art. U(l), Art. IV, Convention on Nature Protection and Wildlife 
Preservation in the Western Hemisphere, Oct. 1 2, 1940, 16I U.N.T.S. 193. 

44 See supra note 3 1 . 
« Id., Art I3(3)(a)(i). 

46 Convention on Biological Diversity, supra note 3, Art. 8. 

47 The World Heritage Committee, at its I Oth session in December 1 995 
adopted 23 new cultural sites and 6 new natural sites for the World Heritage List. 
There are now 469 sites — 350 cultural sites, 1 02 natural sites, and 1 7 mixed sites, 
World Heritage Newsletter, No. 10, Mar. 1 996, available online at http://www. 
unesco. org/whc/news/l Onewsen. h tm#story4. 

48 Thorsell, supra note 32, at 24. 



114 Biodiversity and Human Rights 

plan to create a protected area close to a common frontier. 49 Some con- 
ventions go even further and ask the parties to co-manage resources that 
transcend national frontiers. The Ramsar Strategic Plan of 1 997-2000, 
for instance, advocates the development of transfrontier wetlands in 
accordance with Article 5 of the Ramsar Treaty. 50 

Some adjacent transnational protected areas have been declared trans- 
boundary World Heritage Sites 51 and the World Heritage Convention 
welcomes the designation of other such areas. Transboundary biosphere 
reserves have been proposed also as a way to enhance the management 
of national reserves. 

This study supports efforts to manage resources transnationally if 
such efforts incorporate human dignity values. Such efforts can be pri- 
vate or public depending on where wildlife resides — public or private 
lands. The public or private transnational management of wildlife should 
not become the excuse, though, to suppress communities and violate 
human rights. A change in rhetoric — replacing the term "transboundary 
protected areas" with the term "transboundary landscapes" — may help 
reinforce perceptions that transnational management is inclusive of 
human habitation and manipulation. 



49 See, e.g., Art. 1 3(6) of the 1 985 ASEAN Agreement on the Conservation of 
Nature and Natural Resources, supra note 3 1 : 

Contracting Parties shall co-operate in the development of principles, objec- 
tives, criteria and guidelines for the selection, establishment and manage- 
ment of protected areas in the Region with a view to establishing a 
co-ordinated network of protected areas throughout the Region, giving par- 
ticular attention to those of regional importance. 

50 See supra note 19. 

51 Clare Shine, "Legal Mechanisms to Strengthen and Safeguard 
Transboundary Protected Areas," in Parks for Peace 37 (International Conference 
on Transboundary Protected Areas as a Vehicle for International Co-operation, 
September 1997, Conference Proceedings, Draft of Jan. 30, 1998). 



International Rules for National Conservation 115 

2. THE CITES CONVENTION AND THE BIODIVERSITY 

CONVENTION 

The CITES Convention 52 and the Biodiversity Convention" constitute 
the cornerstones of the current international system for conservation. 
This system is based on prohibitions/restrictions on the trade in wildlife 
species and products and on the will of states to control the transfer and 
use of germplasm resources and technologies. 

2.1. The CITES Convention 

The CITES convention was drafted in 1963 by the International Union 
for the Conservation of Nature as a result of concerns that trade in 
wildlife was engendering huge species losses. The Convention was 
eventually adopted in 1973 and entered into force in 1975. 

Structure 

The structure of the CITES Convention is the same as the structure of 
the other conventions that deal with the threat of species loss. 54 The con- 
vention lists species in three Annexes. Annex I includes the most endan- 
gered species. Annex II includes the species threatened to become 
endangered. And Annex III includes endangered species in the territory 
of the parties to the convention. The convention prohibits the trade in 
species included in Annex I, regulates the trade in species included in 
Annex II and allows states to bring endangered species in their territory 
under Annex III of the convention. 

According to the convention, species are traded based on import and 
export permit requirements that become less demanding the less strict 
the classification of species is. For instance, species classified in 
Appendix I are subject to both an import and an export permit while 
species classified in Appendix II are subject only to an export permit. 55 

52 See supra note 1 4. 

53 See supra note 3. 

54 See supra note 14. 

55 Arts. Ill and IV. 



116 Biodiversity and Human Rights 

Monitoring/Enforcement 

The enforcement of the convention is left to member states. States are 
required to take measures to punish those who violate the convention and 
to confiscate items that are illegally traded or possessed. 56 States must 
maintain detailed records of the trade in species and share them with the 
Secretariat of the convention through annual reports that summarize the 
trade. 57 States meet also every two to three years as Conference of Parties 
to review the implementation of the convention and examine proposals to 
amend the lists of species in Appendix I and Appendix II. 

The work of the Conference of Parties is facilitated by the work of 
four permanent committees: the Standing Committee, the Animals 
Committee, the Plants Committee 58 and the Nomenclature Committee. 59 
The purpose of the Standing Committee is to provide assistance in 
implementing the convention and in overseeing the Secretariat's budget. 
One of the major issues that the Standing Committee has dealt with 
recently was whether to re-open the trade in elephant products. 

Despite the mechanisms in place, the enforcement of the CITES 
Convention has encountered many problems. Many of the excep- 
tions 60 to the convention, for instance, the tourist-souvenir 
exception 61 and the trans-shipment 62 exception and state reserva- 



* Art. VlII(l)(a), (b). 

57 Art.VlII(7)(a). 

58 The Animals Committee and Plants Committee provide specialized exper- 
tise regarding the species that are under CITES control. 

59 The Nomenclature Committee was established in recognition of the need to 
standardize names used for animal and plant species. 

60 For the exceptions to the convention and how they have been used to breach 
the convention, see Simon Lyster, International Wildlife Law 256-262 (1985). 

61 Art. VI1(3) of the Convention provides that the regulations of the conven- 
tion do not apply to specimens that have personal or household effects. Some state 
parties apply this exception liberally — the United States for instance considers any 
items of personal baggage to be personal or household effects. Id. at 258. 

62 Art. VI 1(1 ) provides that the regulations of the convention do not apply "to 
the transit or trans-shipment of specimens through or in the territory of a Party 



International Rules for National Conservation 117 

tions 63 have hampered monitoring and enforcement. Exceptions 
have been used to smuggle species under the pretense that the 
exceptions apply. Reservations 64 have allowed states to opt out of 
the provisions of the convention and have legitimized trade other- 
wise considered illegal under the convention. 

These loopholes, cultural beliefs that have kept up demand and a 
fearless network of poachers, supported by the poor of the develop- 
ing world, have undermined the effectiveness of the convention. Some 
of the provisions of the convention, especially those regarding the 
bans on the trade of species and their products have hampered the 
people of the developing world by sabotaging local management sys- 
tems. The convention has provided also the excuse to persecute those 
called "poachers" — in reality poor people seeking to participate in 
the wealth effect generated by the black markets propagated by the 
convention. 

2.2. The Biodiversity Convention 

The Biodiversity Convention 65 is the first attempt to deal globally with 
biodiversity protection. The convention is a framework convention. It 
does not establish biodiversity protection standards but attempts to cre- 
ate the outline of a regime for biodiversity protection by focusing on in 
situ conservation and marginally on restoration and gene bank man- 
agement. Declaration of national sovereignty over natural resources, 
intellectual property rights and technology transfers become the 
vehicles for the establishment of such a regime. This section deals 



while the specimens remain in Customs control." This provision has been abused 
since middle-men can import species from non-parties, hold them "in transit" in a 
state party (without, thus, having to obtain a permit) and then export them to a non- 
party. Id. at 257. 

63 According to Art. XXI!I(3), states that have taken reservations on certain 
items are considered non-parties with regard to those items. Reservations can be 
damaging since reserving parties often trade legally with non-parties and illegally 
with parties violating the letter and the spirit of the convention. Id. at 263. 

<* Arts. XXI II, X. 

65 See supra note 3. 



118 Biodiversity and Human Rights 

extensively with the conservation aspects of the Biodiversity Conven- 
tion. Chapter 4 focuses on the issues of access to biodiversity resources, 
transfers of technology and intellectual property rights. 

Like most framework conventions, the convention reflects the con- 
cerns of its framers rather than resolves them. The convention empha- 
sizes that states must preserve biodiversity "as far as possible and as 
appropriate" 66 by undertaking measures that would protect biodiversity 
in nature or in gene banks. But the convention never enters into the 
details on what states must specifically do to protect biodiversity. 

Nationalism 

The convention places emphasis on national 67 and bilateral action based 
on the presumption that biodiversity can be protected more effectively 
at the national/bilateral level. 68 The convention clearly places biodiver- 
sity resources under national sovereignty 69 and most of its articles are 



66 This terminology is repeated in many of the articles of the convention: Arts. 
5,6,7,8,9,10, 11, 14. 

67 See, e.g., Art. 6(a): 

Each Contracting Party shall, in accordance with its particular conditions 
and capabilities: Develop national strategies, plans or programmes for the 
conservation and sustainable use of biological diversity. . . . 

The Second Meeting of the Conference of the Parties adopted a number of deci- 
sions that shifted the focus of the operations of the Secretariat towards the national 
implementation of the Convention. The Second Meeting of the Conference of the 
Parties voted for the creation of a clearing-house mechanism, the preparation of 
national reports and additional financial assistance so that countries could fulfill 
their obligations under the convention. See Conference of the Parties to the 
Convention on Biological Diversity, Proposed Budget of the Trust Fund for the 
Convention on Biological Diversity, Sept. 14, 1996, UNEP/CBD/COP/3/33. 

68 Lyle Glowka et al., "A Guide to the Convention on Biological Diversity," 
Environmental Policy and Law Paper No. 30 (1UCN ed., 1994). 

69 Art. 15(1): 

Recognizing the sovereign rights of States over their natural resources, the 
authority to determine access to genetic resources rests with the national gov- 
ernments and is subject to national legislation. 



International Rules for National Conservation 119 

replete with soft state obligations. Even in articles where the emphasis 
shifts to international cooperation, there are more allusions to national 
policies rather than international measures. 70 As analyzed in Chapter 4, 
the provisions on access to biodiversity and transfers of technology are 
the triumph of bilateralism. 

The International Management of Biodiversity and Human Rights 

The framers of the convention missed the opportunity to create legisla- 
tion that would define the parameters of an international biodiversity 
management regime. Such a regime would emphasize the transnational 
aspects of the management of transboundary resources and international 
gene bank development. An international policy on biodiversity man- 
agement would also make the necessary link between biodiversity pro- 
tection and human rights. The convention takes into account that "the 
eradication of poverty is the first and overriding priority of developing 
countries," 71 and recognizes the rights of indigenous peoples to their 
knowledge and innovations. 72 But the convention still fails to effectively 
link biodiversity protection with the protection of human dignity and 
human rights, and to present human dignity standards as the threshold 
standards of biodiversity protection. As mentioned before, developing 



70 Article 5 provides that state parties must cooperate for the preservation of 
diversity in areas outside the national jurisdiction (for example, the high seas) or 
on "other matters of mutual interest" (for example, transfrontier pollution, or the 
regulation of migratory species). See also Art. 1 8 on Technical and Scientific coop- 
eration. While paragraph 1 of Article 18 emphasizes the need to promote technical 
and scientific cooperation through the appropriate national and international insti- 
tutions, paragraph 2 of the same article emphasizes; 

Each Contracting Party shall promote technical and scientific cooperation 
with other Contracting Parties, in particular developing countries, in imple- 
menting this Convention, inter alia, through the development and imple- 
mentation of national policies. In promoting such cooperation, special 
attention should be given to the development and strengthening of national 
capabilities, by means of human resources development and institution 
building. 

71 Art. 20(4). 

72 Art. 8(j). 



120 Biodiversity and Human Rights 

countries have defended in oratory social measures for the eradication 
of poverty. In practice, though, they have endorsed conservation/eco- 
development when it is in their interests even if that means the system- 
atic erosion of the standard of living of the unfortunate poor within their 
population. 

Gene Bank Development 

Since the convention reflects rather than attempts to alter prevalent per- 
ceptions, gene bank development plays a marginal role in biodiversity 
protection. 73 The convention explicitly provides that states must adopt 
measures of gene bank development "for the purpose of complement- 
ing in situ measures." 74 Gene bank development and other means of ex 
situ biodiversity protection become, therefore, a supplement to in situ 
management. It is true that gene bank development has not been used 
extensively for the protection of wild species. However, gene bank 
development certainly presents multiple possibilities for the protection 
of endangered species or useful wild species and it is worth exploring 
given the costs of nature reserve management in terms of human dig- 
nity and human rights. 

The convention also provides that ex situ conservation measures 
should preferably take place in the country of origin 75 reflecting again 
the current nationalistic attitude toward germplasm conservation. Since 
most genetic resources are located in developing countries and gene 
banks are located in developed countries, the convention calls for an 
increase in the number of gene banks in the developing world. The con- 
vention also proposes that it is best for each country to have its own 
gene banks, 76 a too limited and not very practicable approach to 
germplasm preservation. Given the possibilities presented by develop- 
ing regional and even international gene banks, it is not cost-efficient 
for many developing countries to keep their own gene banks. A 



73 Art. 9. 

74 Id. 

75 Art. 9(a). 

76 Art. 9(b). 



International Rules for National Conservation 121 

successful example of a regional gene bank is the Nordic gene bank. 
While countries in other regions may not be on the friendly terms that would 
allow for regional gene bank development, 77 overall, regional and interna- 
tional cooperation is still more cost-efficient and thus, worth pursuing. In 
the area of gene bank development, self-sufficiency is costly, and collabo- 
ration is certainly a more cost-effective means to conserve germplasm. 78 

Restoration 

The convention refers explicitly to restoration but it does so sporadically 
within the provisions of in situ and ex situ conservation. Clearly, accord- 
ing to the framers of the convention, restoration does not qualify as an 
independent conservation method that could make a drastic difference 
in international conservation efforts. 79 This short-sighted view of 
restoration is unfortunate since restoration could revitalize many 
degraded areas and thus reduce the pressure on biodiversity-rich areas. 
The framers of the convention could have dedicated, at least, an article 
of the convention solely to restoration and could have underlined that 
restoration is an equivalent partner of in situ conservation. 

Protecting Nature Inside Nature: In Situ Conservation 

The article on in situ conservation presents this type of conservation as 
the most fundamental method of protecting biodiversity. States must "as 



77 Donald L. Plucknett et al., Gene Banks and the World 's Food ( 1 987). 

78 Id. at 1 9 1 . 

79 Art. 8(f): 

Each Contracting Party shall, as far as possible and as appropriate: . . . 
Rehabilitate and restore degraded ecosystems and promote the recovery of 
threatened species, inter alia, through the development and implementation 
of plans or other management strategies. 

Art. 9(c): 

Each Contracting Party shall, as far as possible and as appropriate, and pre- 
dominantly for the purpose of complementing in situ measures: . . . Adopt 
measures for the recovery and rehabilitation of threatened species and for 
their reintroduction into their natural habitats under appropriate conditions. 



122 Biodiversity and Human Rights 

far as possible and as appropriate" establish a system of protected 
areas; 80 develop guidelines for the selection and management of pro- 
tected areas; 81 regulate and manage biological resources both within and 
outside protected areas; 82 promote "environmentally sound and sus- 
tainable development" in areas adjacent to protected areas; 83 and adopt 
the necessary regulatory measures for the protection of endangered 
species. 84 States must also manage and control the risks associated with 
the release of bio-engineered organisms 85 and prevent the introduction 
of exotic species that may have adverse impacts on endemic species 
and habitats. 86 

Overall, the article on in situ conservation seems intentionally vague 
so as to give states some latitude in designing their conservation pro- 
grams. Since, in practice, in situ conservation has meant often total 
preservation of protected areas based on violent evictions of the people 
that inhabit those areas, it would have been desirable if the provisions on 
in situ conservation included a clause that ensured that in situ conserva- 
tion will not be pursued by violating human dignity and human rights. 

It must be acknowledged, however, that the Biodiversity Convention 
is one of the first international treaties 87 to recognize the rights of indige- 
nous peoples and local communities to their "knowledge," "innovations" 



80 Art. 8(a). 

81 Art. 8(b). 

82 Art. 8(c). 

83 Art. 8(e). 

84 Art. 8(k). 

85 Art. 8(g). 

86 Art. 8(h). 



87 Other post-UNCED agreements contain references to indigenous peoples. 
These references, however, sound still paternalistic. According to the Rio 
Declaration, indigenous peoples have a role to play in environmental conservation 
because "of their knowledge and traditional practices." But it is not the peoples 
themselves — it is the state that must support the "identity, culture and interests" of 
indigenous peoples. See Principle 22, Rio Declaration on Environment and 
Development, June 5, 1992, reprinted in 31 l.L.M. 874 (1992). 



International Rules for National Conservation 123 

and "practices." 88 The Biodiversity Convention provides that the con- 
sent of indigenous peoples is needed to utilize their knowledge and that 
there should be equitable sharing of the benefits derived from such 
knowledge. The specifics of equitable sharing, though, still resist prac- 
tical application. 89 

Implementation 

The parties must submit to the Conference of Parties the measures taken 
to implement the convention and an evaluation of the effectiveness of 
such measures in accomplishing the objectives of the convention. 90 
However, such reporting is bound to be difficult not only because the 
objectives of the convention are far from clear but also because report- 
ing on the effectiveness of measures to preserve biodiversity must be 
based on an accurate assessment of the existing biodiversity. Assess- 
ments of the current state of biodiversity — let alone "accurate assessments" 
— do not exist. Moreover, methodologies for measuring biodiversity are 
yet to be perfected. Current methods can provide an idea about the state 
of biodiversity resources but could not be relied upon for a compre- 
hensive assessment. Because of the lack of an accurate methodology, 
most of the financial assistance to developing countries will support pro- 
jects called "enabling activities" — that is the preparation of the first 
national biodiversity strategies and action plans that aim to assess the 
current status of biological diversity. The Subsidiary Body on Scientific, 
Technical and Technological Advice (SBSTTA) 91 has already re-empha- 
sized that the primary focus of the assessment of biological diversity 
must be at the country level. However, since biodiversity does not rec- 
ognize national borders and marine biodiversity is situated outside 
national jurisdictions some regional and international assessment will 
certainly become indispensable in the future. 92 



88 Art. 8(j). 

89 See Chapter 4, Section 1 .4. 
9 ° See Arts. 26, 23(4)(a). 

91 The SBSTTA was established under Article 25 of the Convention on 
Biological Diversity, supra note 3. 

92 Conference of the Parties to the Convention on Biological Diversity, Third 



124 Biodiversity and Human Rights 

Most current methodologies for the assessment of biodiversity are 
based on the measurement of species. Species, though, are often an 
inadequate unit for the measurement of biodiversity. In some instances 
the assessment of biodiversity may be more accurate in terms of phyla 
and families. The identification of ecosystems and habitats where bio- 
diversity resides is even more problematic than determining the appro- 
priate unit for measuring biodiversity. There is no universal definition 
of what a habitat or an ecosystem is. Attempts to classify ecosystems 
are based on the species that occur in them or on the physical charac- 
teristics (wetlands, forests) of the area or a combination of both. 
However, such classifications are in most cases incomplete descriptions 
of the specifics of diverse ecosystems. 93 Moreover, it is not sufficient to 
identify the species and habitats. Monitoring how the species and habi- 
tats change over time is equally important. Changes may involve either 
complete conversion or modification of habitats. Environmental modi- 
fication is much more difficult to identify than conversion. For exam- 
ple, in the case of forests, a complete conversion of forested land into 
agricultural land will be easy to identify However, partial logging may 
induce the multiplication of some species, the reduction of other species, 
or may leave the forest unaffected. The apprehension of such changes 
will necessitate an extensive monitoring infrastructure with a complete 
inventory of the species that inhabited the forest before logging. The 
development of such an infrastructure is labor-intensive and costly. And 
such an infrastructure can realistically be developed only for a small 
number of species. 94 

Genetic diversity, which is the focus of the Biodiversity Convention, 
is even more difficult to identify. Methods to measure genetic diversity 
require many samples and analyses by trained personnel capable of 
using sophisticated laboratory techniques. Because the techniques are 
expensive and the results produced difficult to interpret, genetic diver- 
sity is rarely used as a measure of biodiversity. The UNEP has recom- 



Meeting, Appraisal of the SBSTTA Review of Assessments of Biological Diversity 
and Advice on Methodologies for Future Assessments, Sept. 13, 1996, UNEP/CBD/ 
COP/3/13, at 4. 

93 Id. at 6-8. 

94 Id. at 8-9. 



International Rules for National Conservation 125 

mended that data on biodiversity must first be collected at the species, 
subspecies or population level. Only biodiversity resources of economic 
value must be examined at the genetic level. 95 

One of the most widespread and cheapest methods to estimate bio- 
diversity at the species level is the use of indicators. As mentioned 
before, the number of species even in a small area may be so great that 
identifying and inventorying such species will be impracticable. Certain 
species, therefore, can be used as indicators for the biodiversity in the 
whole area. 96 Actually the development of a common set of indicators 
could be instrumental in ensuring uniform and comparable reporting 
from state parties and could facilitate the administration of data under 
the convention. 97 The SBSTTA 98 has recommended that indicators are 
a feasible method for the assessment of biological diversity. 

Article 7 of the Biodiversity Convention deals with the identification 
and monitoring of biodiversity at the national level according to a list 
of categories included in Annex I of the convention. 99 Some of these cat- 



's Id. at 9. 

'« M.atlO. 

" W.atll. 

> 8 Art. 25. 

w According to Article 7: 

Each Contracting Party shall, as far as possible and as appropriate . . . 

(a) identify components of biological diversity important for its conserva- 
tion and sustainable use having regard to the indicative list of categories set 
down in Annex l . The categories included in Annex l are: 

1. Ecosystems and habitats: containing high diversity, large numbers of 
endemic or threatened species, or wilderness; required by migratory species; 
of social, economic, cultural or scientific importance; or, which are repre- 
sentative, unique or associated with key evolutionary or other biological 
processes; 

2. Species and communities which are: threatened; wild relatives of domes- 
ticated or cultivated species; of medicinal, agricultural or other economic 
value; or social, scientific or cultural importance; or importance for research 
into conservation and sustainable use of biological diversity, such as indica- 
tor species; and 

3. Described genomes and genes of social, scientific or economic importance. 



126 Biodiversity and Human Rights 

egories are quite vague and states will not be able to engage in identifi- 
cation unless some guidance is provided at the international level. For 
example, states will need further clarification on defining the habitats 
that contain "large number of species." Since the term "large number" 
is not further explained, and different definitions could be attached to it, 
states must request more detailed information about the possible inter- 
pretations of this provision. 100 Also the definition of "wilderness" will 
remain elusive since there are no areas on earth not impacted severely 
by humans. 101 It will be difficult also to identify ecosystems represen- 
tative of "key evolutionary and biological processes" and ecosystems 
and habitats that are unique. 102 Very little is known about evolution to 
enable us to identify with confidence ecosystems of importance or 
unique ecosystems. Also no persuasive models have been developed for 
appraising the social, scientific and economic importance of genes and 
genomes. 103 However, the identification and monitoring of economically 
useful species must be easier and the Conference of Parties could estab- 
lish priorities for the monitoring of such species. 104 It will be easier also 
to identify species of social, scientific or cultural importance or indica- 
tor species. 105 

Parties have to identify and monitor the activities that may have 
adverse impacts on biodiversity resources. 106 Identifying such activities 
is not easy. A change in the natural environment may be the result of 
many causes. It is difficult to disentangle the effects produced by nat- 
ural causes from those provoked by human impacts. Moreover, the same 
human impacts may be appraised as both beneficial and detrimental 
depending on the standpoint of the observer. A human impact may 



100 Conference of the Parties to the Convention on Biological Diversity, Third 
Meeting, Options for Implementing Article 7 of the Convention, Sept. 15, 1996, 
UNEP/CBD/COP/3/12, at 4 [hereinafter Assessment of 7]. 



101 


Id. 


102 


Id. at 6. 


103 


Id. at 8. 


104 


Id. at 7. 


105 


Id. at 8. 


106 


Art. 7(c). 



International Rules for National Conservation 127 

adversely affect certain species. On the other hand, it may contribute to 
the overall resilience of the ecosystem. 107 

The identification of human impacts on the environment should 
preferably take place before a project is undertaken. The purpose of the 
Environmental Impact Assessment (EIA) is exactly that: to identify the 
effects of human activities on nature. The convention explicitly provides 
that state parties must introduce "as far as possible and as appropriate" 
environmental impact assessments for state projects that are likely to 
have significant adverse impacts on biological diversity. 108 Initially EI As 
were viewed as potentially useful instruments of conservation. The 
implementation of EIAs, however, by the World Bank, the Organization 
for Economic Co-operation and Development (OECD) and the 
European Union has revealed that EIAs have not fulfilled their poten- 
tial. 109 Some of the problems with the current execution of EIAs include 
lack of analysis of alternative projects, mild mitigation measures, 
absence of monitoring and implementation, and lack of institutional 
capacity for competent EIA preparation. Public participation is also mar- 
ginal, especially when such participation involves affected populations 
and local NGOs. EIAs have been especially ineffectual with regard to 
biodiversity-related projects since the response of ecosystems and habi- 
tats to external impacts is difficult to predict. 1 10 

3. THE INABILITY OF THE CITES CONVENTION 

AND THE BIODIVERSITY CONVENTION TO 
STEM BIODIVERSITY LOSS 

To the uninitiated into international environmental law, the current inter- 
national system for the protection of biodiversity seems at best contra- 
dictory: vague provisions hard to implement and difficult to enforce, 
selective prohibitions and restrictions not supported by consistent 



107 Assessment of 7, supra note 1 00, at 9. 

108 Art. 14(a). 

109 Conference of the Parties to the Convention on Biological Diversity, Third 
Meeting, Note by the Executive Secretary, The Availability of Additional Financial 
Resources, Oct. 6, 1996, UNEP/CBD/COP/3/37, at 13. 

"° Id. 



128 Biodiversity and Human Rights 

monitoring and enforcement generating black markets all over the 
world. What is the point? 

The point is that vague provisions, such as those included in the 
Biodiversity Convention, are the start-up mechanisms of international 
lawmaking. While they seem pointless and often conflicting, they even- 
tually help generate agreements that include readily enforceable stan- 
dards. Many successful international regimes are the product of a 
"framework convention" followed up by much more concrete agree- 
ments that set up clear and specific standards. 1 " 

It is more difficult to explain the prohibitions and restrictions with 
which some international instruments, such as the CITES Convention, 
are infused. Prohibitions and restrictions are often generated when out- 
raged states find a certain behavior particularly despicable. It is believed 
that banning the behavior is the ultimate means to eradicating it. While 
the ban is initially vigorously monitored and enforced, even at the 
expense of the international human rights, it is eventually forgotten. 
Many new issues come up everyday in the international arena shifting 
the focus of states. Such issues may involve terrorism, wars, poverty and 
disease. It is not paradoxical, therefore, that many environmental issues, 
unless perceived of urgent importance, fall on the sidelines. 

The Failure of the CITES Convention 

The CITES Convention has been unable to stem the loss of species. On 
the contrary it has perpetuated a lucrative black market in which many 
of the species are now traded. There are two basic reasons why the 
CITES convention has failed. 

States are reluctant to commit the resources to back up the enforce- 
ment and monitoring of the convention. Given the number of 



111 An example of such a successful regime is the regime on the Ozone 
Protection. See Vienna Convention for the Protection of the Ozone Layer, Mar. 22, 
1985, reprinted in 26 LL.M. 1529 (1987). The convention was a framework con- 
vention and was followed by a series of protocols that set explicit standards, see, 
e.g., Adjustments and Amendments to the Montreal Protocol on Substances that 
Deplete the Ozone Layer, June 29, 1990, reprinted in 30 LL.M. 537 (1991). 



International Rules for National Conservation 129 

species protected and the methods that have been invented to 
smuggle such species monitoring and enforcement resources 
have to be substantial to support any meaningful implementa- 
tion of the convention. Such resources have not been available 
on a consistent basis. When they have been available they have 
been used to apprehend and punish the poor poachers who oper- 
ate on the ground rather than to dismantle the international orga- 
nized crime networks. 
• Theframers of the convention failed to take into account the per- 
sistent demand for certain species and their products. This per- 
sistent demand is due to cultural attitudes that are resistant to 
change. Many East-Asian countries, for instance, are avid 
importers of body parts of endangered species, such as tigers 
and rhinoceros, because of their importance in traditional med- 
icine. Some NGOs still believe that the optimal way to protect 
endangered species is to change the cultural attitudes of the 
South and view the South-East Asian dependence on traditional 
drugs" 2 derived from endangered species as a peculiar back- 
wardness." 3 But labeling cultural attitudes as backward has not 
been productive in producing compliance and has multiplied 
the complaints of the South against the cultural imperialism of 
the North. 

Interpreting the Framework of the Biodiversity Convention 

The Biodiversity Convention has not been able to stem biodiversity loss 
to the extent initially expected. But such expectations were doomed to 



112 The depletion of bears is blamed on the trade in bear gallbladders used in 
the East for medicinal purposes. The use of the gallbladders, though, is not frivo- 
lous since it has been proved that gallbladders have medicinal value. Gallbladders 
produce ursodeoxycholic acid that is used in traditional Chinese medicine to cure 
intestinal, liver and cardiac diseases. See Peter Gorner, "Bears Vanishing to Feed 
Ethnic Medicine Market," Chicago Tribune, Feb. 4, 1994, at C4. 

113 Shennie Patel, "The Convention on International Trade in Endangered 
Species,"! 8 Houston Journal of International Law 1 57, 208-09 (1995) (for the per- 
spective that South-East Asians need to be educated to use alternative modern west- 
ern medicines). 



130 Biodiversity and Human Rights 

disappointment from the day of the adoption of the convention. This is 
because the convention is a framework convention that reflects states 
concerns about biodiversity and its exploitation for profits. It does not 
contain an arsenal of standards, enforcement and monitoring mecha- 
nisms to establish biodiversity protection as a priority goal. Many of 
the provisions of the convention concentrate on state control over nat- 
ural resources and nature reserves rather than gene banks and restora- 
tion and do not propose human dignity as the standard for biodiversity 
protection. The convention has not been supported also with sufficient 
funding. But even with the adequate number of sticks and carrots, it 
would still be difficult for an international instrument to change the 
course of biodiversity conversion. As mentioned before, the deep causes 
of biodiversity conversion have to do with the economic conditions of 
the developing world and certain behavioral attitudes and beliefs that 
are resistant to change. Under such circumstances, the convention 
remains a dull affirmation of states half-hearted attempts to protect 
biodiversity. 

The lack of current results, though, should not blind us about the 
future possibilities of using the convention as an instrument that could 
transform the face of national conservation to support the goals of inter- 
national biodiversity management. The convention is flexible enough 
and contains elements that, with the right interpretation, could cultivate 
the first seeds of international biodiversity management. 

Many of the provisions of the convention are flexible and because 
of the language used they could be interpreted to somewhat support 
international biodiversity management. After all the convention refers 
to restoration and gene bank development and recognizes the knowl- 
edge and interests of indigenous and local populations. This is far 
more than any other similar convention has until now recognized. 
Therefore, it is possible to eventually interpret the Biodiversity 
Convention in ways that would provide some sort of basis for inter- 
national biodiversity management. A protocol to the Biodiversity 
Convention that would establish the link between biodiversity protec- 
tion and human rights could be the first step in asserting the basic 
premise of international biodiversity management. 



International Rules for National Conservation 131 
4. FUNDING FOR THE PROTECTION OF BIODIVERSITY 

Because biodiversity has not been at the top of states' agenda for many 
years, it was hoped that the Biodiversity Convention would launch a new 
era of increased funding for the preservation of global diversity. The 
convention explicitly provides that "the developed country Parties shall 
provide new and additional financial resources to enable developing 
country Parties to meet the agreed full incremental costs" that they will 
occur in implementing the convention. This incremental assistance is to 
be provided in accordance with an agreement between the country and 
the financial mechanism — currently the GEF 114 — established under 
Article 21 of the Biodiversity Convention. 

The hopes that the Biodiversity Convention will generate increased 
financial assistance for biodiversity have yet to materialize. The 
Organization for Economic Co-operation and Development (OECD) has 
revealed that funding for diversity is only a small fraction of the over- 



1 M The GEF's Operational Strategy for directing assistance for biodiversity pro- 
tection has identified four operational programs: 

• arid and semi-arid ecosystems; 

• coastal, marine and freshwater ecosystems (including wetlands); 

• forest ecosystems; and 

• mountain ecosystems. 

The choice of these ecosystems is in accordance with the guidance provided by the 
Conference of the Parties. See Conference of the Parties to the Convention on 
Biological Diversity, Third Meeting, Report of the Executive Secretary, Financial 
Resources and Mechanisms, Sept. 22, 1996, UNEP/CBD/COP/3/6, at 5. 

The financial activities of the GEF can be classified as: 

• operational programs encompassing long-term measures; 

• enabling activities; 

• short-term response measures. 

Enabling activities are activities that constitute the foundation for the design of 
future effective measures. The purpose of enabling activities is to assist recipient 
countries to develop national strategies, plans or programs, and to identify biodi- 
versity resources worth protecting and human activities that are likely to have 
adverse impacts on biodiversity. GEF projects and programs are country-driven. 
See GEF Council, Draft Report of the GEF to the Third Meeting of the Conference 
of the Parties to the Convention on Biological Diversity, Sept. 4, 1996, GEF/C.8/10. 



132 Biodiversity and Human Rights 

all Official Development Assistance (ODA)." 5 Biological diversity 
activities constitute only 0.75 percent of the total ODA from the period 
between 1987 and 1992. Only in two years, 1988 and 1992, biodiver- 
sity activities accounted for more than 1 percent of the total ODA. There 
was a sharp peak in biological diversity assistance in 1992. Since then, 
however, ODA declined to $269 million in 1993 and to $208 million in 
1994 ii6 The decline in assistance by bilateral and multilateral agencies 
and donors was only partially offset by the GEF contributions. The GEF 
commitment to biological diversity during the 1991-92 pilot phase was 
$332 million — an average of $1 1 1 million per year. However, in the year 
ending June 1995, the GEF assistance had fallen to $65 million, and in 
the year ending June 1996, it was further reduced to $23 million. 1 n 

These estimates, while they give a general idea about the decline in 
assistance for biodiversity, are not totally accurate because of the diffi- 
culties of monitoring the flows of financial assistance for biodiversity 
projects. No universal definition exists of what constitutes a biodiver- 
sity-related project that would facilitate the monitoring of funds chan- 
neled to biodiversity protection. 1 Is 

Despite the propensities for miscalculation, though, it is generally 
agreed that the ODA for biodiversity is declining. To an extent, the 



115 It must be noted that the OECD estimates do not include funding for the 
agricultural and forestry sectors and ex situ conservation activities. The OECD data 
also do not include technical cooperation and technology transfer. See Note by the 
Executive Secretary, The Availability of Additional Financial Resources, Conference 
of the Parties to the Convention on Biological Diversity, Third Meeting, Oct. 6, 
1996, UNEP/CBD/COP/3/37, at 6. 

116 W.at7. 

117 W.at8. 

118 Multiple methodological complexities make it difficult to estimate how 
much assistance has already been directed to biodiversity projects. For instance, 
different methods have been applied to measure "new and additional" financial 
assistance. Some measure additionality in terms of historical levels of ODA that 
existed the time the Biodiversity Convention was opened for signature. Others mea- 
sure additionality in terms of the minimum targets for ODA provided by the 
General Assembly resolutions. Others characterize as new and additional financ- 
ing, financing generated from new institutional mechanisms without reference to 
the overall levels of previous assistance. Id. at 18. 



International Rules for National Conservation 133 

decline in assistance for biodiversity reflects the overall decline in 
Official Development Assistance. But, while the overall decline in ODA 
is only 6 percent, the decline in biological diversity-related assistance 
is 80 percent. 119 

The decline in funding has been attributed to the difficulties that exist 
in designing and implementing effective biodiversity projects. It is hard 
to design and implement in situ biodiversity projects because their suc- 
cess depends on the modification of human interactions with nature. 
This modification cannot happen instantaneously and its effects are felt 
only after long periods of time. But while the rate of species extinction 
and the overall value of biodiversity are under constant reevaluation, 
other conventional infrastructure projects are less complex, their costs 
can be easily estimated and the benefits they produce are more evident. 
Inevitably, therefore, they attract more funding. For instance, the bene- 
fits of a better transportation network are more readily felt than the ben- 
efits of nature preservation. It is difficult to estimate the contributions 
of each and every protected area to human welfare. 120 

Since Official Development Assistance is diminishing, efforts have 
focused on attracting foreign direct investment. Funding from non-gov- 
ernmental and private entities is becoming an important source for 
funding biodiversity-related activities. 121 Joint ventures use public funds 
to attract private-sector investment for projects that have a biological 
diversity component, for instance, ecotourism or genetic research. 
Several venture-capital funds for biological diversity have already been 
initiated. 122 

Debt-for-nature swaps, an alternative method to encourage biodiver- 
sity protection in the developing world, while promising when first ini- 



1,9 Id. at 8. 
™ Id. at 10-11. 
121 Id. at 18. 



122 Publicly sponsored venture-capital funds include: the Global Environment 
Emerging Markets Fund (US government sponsored); the Nordic Environmental 
Finance Corporation (sponsored by the Nordic countries) and the North American 
Environmental Fund (partly sponsored by the Japanese Overseas Economic 
Corporation Fund). Id. at 14. 



134 Biodiversity and Human Rights 

tiated, have become less frequent. Since 1987 commercial debt has been 
exchanged for conservation in sixteen countries generating $129 mil- 
lion for biodiversity-related projects. The recipient country usually 
agrees to commit local funds to a biodiversity project in exchange for 
reducing the face value of its debt. NGOs are involved in most of the 
debt-for-nature transactions. NGOs usually buy the debt at a discount 
price in the secondary market and subsequently negotiate with the coun- 
try the terms of the conversion. 123 

Debt-for-nature swaps may become easier in the future. Thirty-two 
developing countries have developed national environmental trust funds 
(NEFs). Since 1990, at least $850 million have been contributed to those 
funds. However, most of the resources come from bilateral and multilat- 
eral grants and only occasionally from debt-conversion plans. 124 It will 
be interesting to see whether in the future NEFs will be used in debt-con- 
version programs and whether developing countries will be willing to 
preserve natural resources for debt-relief purposes. Developing countries 
have often viewed debt-for-nature swaps as a covert method to usurp their 
sovereignty. A debt-for-nature conversion may mean that productive areas 
will have to be committed to conservation for years. Developing coun- 
tries with scarce land resources keen on putting the land into productive 
use may eventually regret the commitment of land for debt. Environ- 
mental organizations that lack the monitoring capacity to ensure that the 
designated protected area is really protected may eventually become dis- 
illusioned with debt-for-nature programs. 

In general, because of the difficulties in establishing the goals and 
baselines of biodiversity protection, and thus clearly delineate biodiver- 
sity projects, financial assistance for biodiversity is not bound to be boun- 
tiful in the future unless some kind of an emergency refocuses attention 
on the importance of preservation of biodiversity resources. Private assis- 
tance may increase but only for projects that are likely to produce tangible 
results, such as ecotourism and genetic preservation and manipulation. 
Such projects are a far cry from what conservationists mean when they 
demand increased assistance for biodiversity protection. 



123 Mat 16. 
'24 Id. at 17. 



Chapter 4 

International Rules for the Exchange 

of Germplasm 



1 . BILATERALISM VERSUS FREE ACCESS 

MULTILATERALISM 

1 .1 . Background: Access to Germplasm Resources and 
Intellectual Property Rights 

1.1.1. The Seed Wars 

From historical times, unimproved genetic material has been the com- 
mon heritage of mankind, freely accessible to everyone. 1 Seeds have 
moved around the globe under the understanding that they can be freely 
used and exchanged. Free use, though, has not been a norm without 
exceptions. Colonial governments freely exchanged seeds and simulta- 
neously prohibited the exportation of seeds lucrative for trade. The 
Dutch destroyed all the nutmeg and clove trees in Muluccas except for 
those they planted themselves so as to prevent exportation by the locals. 
The French made the export of indigo seeds from Antigua a capital 
offense. 2 Even today states often refuse to release control over the expor- 
tation of seeds that make the bulk of their export trade. 

While unimproved germplasm has been generally freely available, 
improved germplasm produced by advanced breeding is protected under 
intellectual property rights and plant breeders' rights. In the 1920s and 
1930s countries started to expand intellectual property protection to 
include plant breeders' rights. 3 The United States introduced the Plant 



1 See Calestous Juma, The Gene Hunters: Biotechnology and the Scramble 
for Seeds 37 (1989). 

2 Jack R. Kloppenburg Jr. & Daniel Lee Kleinman, "Plant Genetic Resources: 
The Common Bowl," in Seeds and Sovereignty 1 , 5 (Jack R. Kloppenburg Jr. ed., 
1988). 

3 Juma, supra note 1 , at 1 54. 

135 



136 Biodiversity and Human Rights 

Patent Protection Act, 4 which permits patent rights on asexually pro- 
duced plants, and the Plant Variety Protection Act, which provides pro- 
tection for sexually produced plants. 5 European countries also 
introduced plant breeders' rights. 6 Plant breeders' rights are exclusive 
rights granted to breeders to prevent the unauthorized use of their vari- 
eties. Breeders' rights give breeders incentives to produce more vari- 
eties by allowing them to reap off seizable profits from their innovations. 
But breeders' rights also have induced tight controls on the transfers and 
use of improved seeds and a high concentration of the seed supplies in 
the hands of the powerful seed industry. 

The power of the seed industry and its ability to set prices for the 
advanced cultivates it produces 7 set off the seed wars of the 1980s. The 
disputes focused on the free access policies to unmodified germplasm 
implemented by gene banks and the International Agricultural Research 
Centers. Developing countries argued that gene banks and the Inter- 
national Agricultural Research Centers in particular are the agents of 
multinational seed corporations. The International Agricultural Research 
Centers used to allow free access to germplasm in their collections, but 
the high-yielding varieties produced by seed companies by using that 
germplasm are quite expensive to purchase because they are protected 
by patents or breeders' rights. Developing countries argue that it is unfair 
to have to pay for these varieties that would have never been developed 



4 35U.S.C. § 161 (1988). 

s Plant Variety Protection Act (PVPA) of 1970, 7 U.S.C §§ 2321-2583 (1988). 
The protection provided by a plant patent is not as extensive as the protection 
granted by a utility patent. Also the standards of novelty, utility and non-obvious- 
ness are less strict for plant varieties than utility patents. 

6 See, e.g., Convention for the Establishment of the European and 
Mediterranean Plant Protection Organization, April 18, 1957, U.K..T.S. 44. 

7 Out of the world's 1 ,500 companies 600 can be found in the United States 
and 400 in Europe. See Rabobank Nederland, "World Seed Market Faces 
Stagnation," Agra Europe, Aug. 26, 1994. 

The development of the seed industry made possible the Green Revolution. The 
Green Revolution involved concentration on the production of high yielding vari- 
eties — easily reproducible plant varieties that make possible increased outputs, see 
Juma, supra note 1 , at 79. 



Rules for Exchange of Germplasm 137 

without the free access policies to unmodified germplasm located in 
international gene banks and initially discovered within their territory. 

The seed wars demonstrated the unwillingness of developing coun- 
tries to keep sharing their germplasm resources with multinational cor- 
porations and put in effect the adoption of a set of rules that asserted 
national sovereignty over germplasm resources. Seed and pharmaceu- 
tical industries, which up to the late 1980s were able to obtain germ- 
plasm from developing countries without monetary compensation, must 
now request permission for access and pay a fee for the use and com- 
mercialization of plant resources. Attempts by corporations to obtain 
seeds, isolate their properties and claim intellectual property rights over 
them without acknowledging and compensating the contributions of 
indigenous peoples have been called biopiracy. 8 Such incidents have 
acquired often international dimensions involving states, public and non- 
governmental institutions, and indigenous farmers. 

In the 1950s and 1960s, the United States National Cancer Institute 
and Eli Lilly took an interest in folk medicines from Africa and were 
intrigued by the association of the rosy periwinkle of Madagascar with 
the treatment of diabetes. The rosy periwinkle was used originally by 
Malagasy healers primarily for treating diabetes. The scientists screened 
the plant and found two compounds that are today incorporated into 
powerful anti-cancer drugs. But, because of the absence of policies 
addressing issues of ownership and compensation none of the royalties 
trickled down to the Malagasy people. 9 

In 1995, more than 200 organizations from 35 countries filed a peti- 
tion at the United States Patent and Trademark Office calling for the 
revocation of a patent given to the W.R. Grace to use a pesticide extract 
from the neem tree. They argued that the company has wrongfully 
usurped an age-old biological process used by millions of farmers in 



8 See "The Captain Hook Awards for Outstanding Achievements in 
Biopiracy," News Release, Rural Advancement Foundation International (RAFI), 
May 17,2000. 

9 Access to Genetic Resources: An Evaluation of the Development and 
Implementation of Recent Regulation and Access Agreements 12 (Prepared for the 
Biodiversity Action Network by the Environmental Policies Study Workshop, 
School of International and Public Affairs, Columbia University, 1999). 



138 Biodiversity and Human Rights 

India and other countries for generations. W.R. Grace was initially 
granted the patent because it invented a process that stabilizes the activ- 
ity and increases the storage time of a compound of the neem tree called 
azadirachtin. The European Patent Office has recently revoked the patent. 10 

In March 1995, the Swiss Supreme Court ruled that the manzana 
variety of chamomile plant may not be patented. It revoked the patent 
that the Swiss patent office had granted in 1988 to the German phar- 
maceutical company Degussa/Asta Medica for its manzana variety. ' ' 

In February 1995, the European Patent Office withdrew key parts of 
a patent that was granted to a Belgian company (Plant Genetic 
Systems) and a United States company (Biogen Inc.) for genetically 
engineered herbicide resistant plants. The patent was for plant cells 
made resistant to glutamine synthetase inhibitors by genetic engineer- 
ing. The patent originally did not cover only the gene but also all plant 
cells and plants containing the gene. After the challenge of the patent 
by Greenpeace, the Patent Office's Appeal Board ruled that the patent 
may only cover genetically engineered genes and plant cells but can- 
not extend to the whole plant, its seeds and future generations of plants 
grown from the cells. 12 

On December 20, 2000, the International Center for Tropical Agricul- 
ture (CI AT) filed a formal request for re-examination of a patent known 
as the yellow bean or "Enola bean" patent filed with the United States 
Patent and Trademark Office. CIAT is one of the international 
research centers supported by the Consultative Group on International 
Agriculture Research (CGIAR). A non-governmental organization, the 
Rural Advancement Foundation International (RAFI) had denounced 
the patent as "Mexican bean biopiracy" and demanded that the patent 



10 See Ashok Sharma, "Tree Focuses Debate on Control of Resources," L. A. 
Times, Nov. 1 9, 1 995, at A6; "Neem Tree Patent Revoked", BBC News, May 1 1 , 
2000, available online at http://www.bbc.co.uk/hi/english/sci/tech/newsicl_745000/ 
745028.SM. 

" Martin Khor, "A Worldwide Fight Against Biopiracy and Patents on Life," 
Third World Network, available online at http://www.twnside.org.sg/title/pat-ch.htm. 

' 2 Id. 



Rules for Exchange of Germplasm 1 39 

be legally challenged and revoked. The Enola bean patent is especially 
controversial because the owner and president of the seed company pur- 
chased yellow bean seeds in Mexico in 1994 and filed for an exclusive 
monopoly less than two years later. The company got the patent in 1999 
and filed suits against two companies that were selling Mexican yellow 
beans in the United States. The CIAT, in its official request for re-exam- 
ination of the patent, claims that the patent should not have been granted 
in the first place because the requirements of novelty and non-obvious- 
ness are not met. 13 

In 2001, Greenpeace and the German Catholic Church agency filed 
a legal objection at the European Patent Office against a far-reaching 
patent obtained by DuPont. 14 The organizations accuse DuPont of 
biopiracy and challenge the company's claim for exclusive rights on all 
maize with especially high oil and oleic acid content. 15 According to the 
claimants, a specific method of hybridization must not grant DuPont pri- 
vate intellectual property rights over all varieties expressing the desired 
properties. Such varieties have existed naturally and have been devel- 
oped by maize breeders many years ago. 

Claims of biopiracy have also been made against public institutions, 
for instance, against the Colorado State University for patenting the 
Andean quinoa, against the University of California at Davis for mak- 
ing claims on the disease resistant rice gene of West Africa, and against 
the University of Wisconsin for patenting brazzein from West Africa. 



16 



This climate of distrust is reflected in the international instruments 
that have been adopted. 



13 "Enola Bean Patent Challenged," RAF1 News Release, Jan. 5, 2001. 

14 "Greenpeace and Misereor Challenge Dupont Biopiracy Patent," May 29, 
2001, available online at http://www.greenpeace.org/pressreleases/geneng/ 
2001may29.html. 

15 DuPont has asked for a total control over any use of maize varieties with 
high oleic acid content throughout the entire production chain — from seeds to har- 
vest and products. 

16 "In Search of Higher Ground," RAF1 Occasional Paper Series, Vol.6, No. 
1, Sept. 2001. 



140 Biodiversity and Human Rights 

1 .1 .2. Intellectual Property Rights Over Biodiversity Resources 

Intellectual property rights are not new. They have existed since ancient 
times. Monopoly rights were granted to inventors as early as 200 B.C. 
Intellectual property rights regimes have a dual purpose: to motivate 
inventors by recognizing ownership over the fruits of their intellectual 
endeavors and to benefit the public by requiring the licensing of inven- 
tions. The rationale for the protection of intellectual property is that if 
inventors generate profits from their inventions, they will be more will- 
ing to engage in creative activities. The same rationale lies behind plant 
breeders' rights, copyrights, trademarks, patents, and other offshoots of 
intellectual property rights. 

To receive protection under an intellectual property rights regime, the 
inventor has to prove novelty, an inventive step, and non-obviousness. 
This is the difference between a discovery and an invention. A discov- 
ery is not protected under the law because it is an abstract idea, an intan- 
gible concept, for example, the discovery of a natural force or a 
mathematical formula. The application of an idea to create something 
useful constitutes the core of an invention. 17 It is sometimes difficult to 
draw the line between discoveries and inventions, especially in defining 
what constitutes commercial application. Because of these difficulties 
that are even more acute in the field of biotechnology, there are so many 
challenges against biotechnology inventions. 

Plant Breeders' Rights and the UPOV Convention 

Plant breeders' rights were the first rights to be asserted over living 
resources. The International Union for the Protection of New Varieties 
of Plants, known by the French acronym as the UPOV Convention, 18 has 



17 See generally Stephen A. Bent et al., Intellectual Property Rights in 
Biotechnology Worldwide 106 (1987); See also 35 U.S.C. § 103 (1988); Convention 
on European Patents, Oct. 5, 1973, reprinted in 13 I.L.M. 268 (1974). 

18 The UPOV Convention was adopted in 1961 and was amended in 1978 and 
in 1991, reprinted in 815 U.N.T.S. 89. Forty countries have laws that cover plant 
breeders' rights. Thirty of these countries are parties to the UPOV Convention. 
Countries of the Andean Pact have developed their own system of plant breeders' 



Rules for Exchange of Germplasm 141 

unequivocally established plant breeders' rights on plant varieties that 
are novel, uniform, distinctive and stable. 19 The 1991 amendments of 
the convention strengthened breeders' rights by removing the farmers' 
exception and leaving it up to individual countries to decide whether 
such an exception is appropriate for their domestic legislation. 
According to the prior version of the convention, farmers could save 
seeds protected under breeders' rights for the following year. Under the 
1991 amendments, the ability of farmers to save seeds is decided by 
national legislation. 20 The Convention has also made it more difficult to 
use breeders' varieties for experimental purposes. In general the amend- 
ments try to place breeders' rights on an equal footing with patent rights. 
Patent rights are granted for biotechnology inventions and provide 
stronger protection for those inventions than the protection provided for 
traditional breeding. Seed industries have demanded that breeding and 
biotechnology be granted similar status by strengthening the legal pro- 
tection provided for breeders. However, in most national laws, plant 
breeders' rights are still weaker than patent rights and a claim under a 
breeders' rights regime is subject to a less vigorous examination than a 
claim under a patent regime. This less vigorous examination has led 
sometimes to the protection of minor or cosmetic improvements giving 
support to complaints of biopiracy by developing countries. 



rights. India and the Philippines are considering legislation that will provide rewards 
to breeders. 

Member countries to the World Trade Organization will have to provide for the 
protection of the rights of breeders either through a patent system or a breeders' 
rights system. See Commission on Genetic Resources for Food and Agriculture, 
Second Extraordinary Session, Report on the State of World's Plant Genetic 
Resources, April 22-27, 1996, CGRFA-EX2/96/2, at 37. 

19 Art. 5. 

20 See Art. 14(1 ). National legislation can restrict breeders' rights and allow 
for the farmers' exception. See Art. 1 5(2). The United States has amended the Plant 
Variety Protection Act to grant an unconditional farmers' privilege to all growers 
of sexually propagated species. The European Union has chosen to limit the priv- 
ilege to certain species and to give an unqualified privilege only to small farmers. 
See Adelaida Harris, "Why Change the UPOV Convention?" Information Meeting 
on the Protection of New Varieties of Plants under the UPOV Convention, UPOV/ 
IM/96/3. 



142 Biodiversity and Human Rights 

Intellectual Property Rights over Bio-Engineered Organisms 

There is still a debate on whether intellectual property rights can be 
granted for the modification of living organisms and biotechnology 
inventions. Patent rights over biotechnology inventions are granted over 
innovations that involve the isolation, purification, modification or 
manipulation of the natural properties of a substance for future com- 
mercial application. The United States was one of the first countries to 
establish patent rights over biotechnology inventions. 21 In order to 
receive protection for biotechnology devices, the inventor has to prove 
novelty, an inventive step, and non-obviousness. 22 

Intellectual property rights over biotechnology inventions have now 
the backing of the International Trade Organization. The international 
Trade Related Intellectual Property Rights (TRIPs) agreement, 23 provides 
that countries can recognize patents on most products and processes 
including pharmaceuticals, modified microorganisms, and microbiolog- 
ical processes. Countries can protect also plant varieties under patents 
or other sui generis systems. The agreement thus gives countries some 
sort of discretion in deciding whether patents or other rights must be 
granted to "essentially biological processes for the production of plants 
or animals." 24 While there are exceptions to the agreement, 25 they are 
likely to be strictly interpreted and are unlikely to provide a subterfuge 
for derogating from the spirit of the agreement, which gives full protec- 
tion to intellectual property rights over living organisms. 



21 The first court decision that established intellectual property rights over 
biotechnology in the United States is Diamond v. Chakrabarty, 447 U.S. 303 (1980). 

22 See 35 U.S.C. § 103 (1988); Convention on European Patents, Oct. 5, 1973, 
reprinted in 13 l.L.M. 268 (1974). 

23 TRIPs Agreement, Annex 1C of the Marrakesh Agreement Establishing the 
World Trade Organization, April 15,1 994, available online at http://www. wto.org/ 
english/tratop_e/trips_e/t_agmo_e.htm, 

24 Art. 27.3(b). 

25 According to Art. 27.2, countries may refuse to grant patents when it is nec- 
essary to protect public order or morality, human, animal and plant life or health 
or to avoid adverse environmental effects. But the refusal cannot be based on the 
fact that the national health and safety regulations of the country have yet to approve 
the product or process. 



Rules for Exchange of Germplasm 143 

The issue of intellectual property rights over biotechnology was dis- 
cussed extensively during the adoption of Biodiversity Convention. 
Developing countries have demanded "the equitable sharing of bene- 
fits" coming from biotechnology inventions developed by using their 
germplasm resources. But what "equitable sharing" means is still 
unclear. Article 16(1) & (3) require each party to facilitate access to the 
technology of the other party "on mutually agreed terms." But Article 
16(2) provides that technology transfers cannot violate recognized intel- 
lectual property rights. 26 Thus the convention seems to honor bilateral- 
ism based on the protection and respect for intellectual property rights. 

1.2. The Convention on Biological Diversity: Bilateral 

Agreements for Access to Plant Genetic Resources 

The Biodiversity Convention 27 has given states the final authority 
regarding the dissemination of natural germplasm located within 
national borders. The genetic resources covered under the convention 
are not inclusive of the resources acquired before the entry into force of 
the convention. 28 Resources preserved before the entry into force of the 
convention include the most profitable resources safeguarded in the 
International Agricultural Research Centers and other gene banks. The 
non-retroactive application of the Biodiversity Convention has created 
a two-tiered system for the transfer of resources: de facto free access to 
gene bank resources acquired before the entry into force of the 
Biodiversity Convention, and restricted access to all other resources. 
The issue of free access to pre-Convention resources is now addressed 
through the International Treaty on Plant Genetic Resources for Food 
and Agriculture. 

The Biodiversity Convention provides that no access to natural 
resources will be allowed without some equitable sharing of the benefits 

26 Article 1 6(5) also provides that intellectual property rights must be "sup- 
portive of" and must not "run counter" to the objectives of the convention. But the 
objectives of the convention are vague and do not resolve conclusively what "equi- 
table sharing means." 

27 Convention on Biological Diversity, June 5, 1 992, reprinted in 3 1 I.L.M. 826 
(1992). 

28 Art. 15(3). 



144 Biodiversity and Human Rights 

derived from the manipulation of resources. According to the con- 
vention, unrestricted access to germplasm resources cannot take place 
without a prior agreement on the equitable sharing of technology that 
manipulates the resources — that is biotechnology. This provision, 
which calls for bilateral agreements regarding the transfer of 
resources and technologies, has provoked the opposition of the 
biotechnology industry that is reluctant to share its applications with 
developing countries and has prevented the United States from rati- 
fying the convention. 29 

The Biodiversity Convention has given the green light to countries 
to adopt legislation that would provide procedures for access to their 
resources. To honor the bilateralism supported by the convention, coun- 
tries now require bioprospectors to provide a letter of intent including 
the number of specimens required the manner of collecting those spec- 
imens, and their final destination. In some cases it is not only the 
national consent that is required, but also the local and indigenous 



29 The Biodiversity Convention specifically provides for the sharing of bene- 
fits derived from access to germplasm resources. The sharing of benefits require- 
ment links the provisions on access to germplasm with the provisions on transfers 
of technology and financial assistance. These provisions are difficult to interpret 
because they are reflective of the disagreements that prevailed during the negotia- 
tions of the convention. According to the convention, unrestricted access to genetic 
resources should not be granted without a prior agreement on the equitable shar- 
ing of the technology that manipulates the resources — that is biotechnology. See 
Art. 15(3). Article 16 of the convention is centered on the proposition that devel- 
oped countries can obtain access to biodiversity resources under the condition that 
they provide access to biotechnology. This conditional access to biodiversity 
resources, the United States industry claims, could lead to compulsory licensing of 
biotechnology inventions. Article 1 6 has been the primary reason why the United 
States has refused to ratify the Biodiversity Convention. The Clinton interpretative 
statement paid particular attention to intellectual property rights. The Clinton 
Administration stressed that the sharing of benefits must take into account "the 
exclusive rights to technology that a party may possess" and that transfers of tech- 
nology can take place "only at the discretion of the owner of technology." The 
Clinton statement also declared that resources "obtained by public and private enti- 
ties before the Convention enters into force or obtained outside of its scope are not 
governed by the Convention." See Statement of the President of the United States 
on the Convention on Biological Diversity, 103rd Congress, 1st Session, Treaty 
Document 103-20, US Government Printing Office (1993). 



Rules for Exchange of Germplasm 145 

communities consent. 30 Countries adopted this type of restrictive regu- 
lations in the hope of enriching themselves by using their germplasm 
resources. This type of legislation, though, has not brought wealth to the 
South and has unnecessarily curbed the interest of the North in unex- 
plored resources. As some commentators have put it, bioprospecting 
"profits have been elusive, and win-win opportunities have been few and 
far between." 31 According to the same commentators, technology trans- 
fers and capacity building are the most countries should expect from 
bioprospecting agreements. Bioprospecting agreements will bring rarely 
to developing countries the "green gold" they initially hoped for. 

Today few countries have tried to ensure that preconditions for 
access to their resources do not amount to prohibitions and that access 
to germplasm resources remains more or less unencumbered. In order 
to allow for the unencumbered access to resources, some countries have 
opted for: 

bioprospecting agreements that include as many stakeholders as 
possible coupled with legal devices that reduce the complexity 
of dealing with many stakeholders simultaneously; 32 



30 Most national laws today usually distinguish between commercial and aca- 
demic research even if the borderline between these two types of research is often 
blurred, for instance, when a corporation is funding the research program of an 
academic institution. See Conference of the Parties to the Convention on 
Biological Diversity, Third Meeting, 4-15 November 1996, UNEP/CBD/ 
COP/3/20, at 13 (Oct. 5, 1996) [hereinafter National Legislation]; Ana Sittenfeld 
& Rodrigo Gamez, "Biodiversity Prospecting by INBio," in Biodiversity Pros- 
pecting: Using Genetic Resources for Sustainable Development 69, 82 (Walter V. 
Reidetal. eds., 1993). 

31 Access to Genetic Resources: An Evaluation of the Development and 
Implementation of Recent Regulation and Access Agreements v (Prepared for the 
Biodiversity Action Network by the Environmental Policy Studies Workshop, 
School of International and Public Affairs, Columbia University ed., 1999). 

32 In order to reduce the parties who negotiate with a foreign organization 
some countries have opted for overlapping agreements: one between the state and 
the national organization and the other between the national organization and the 
foreign organization. Such overlapping agreements provided the framework for the 
famous Merck-lNBio cooperation. Id. at 23. 



146 Biodiversity and Human Rights 

• bioprospecting arrangements in areas where property rights are 
clear — namely state parks and other protected areas; 33 
flexibility. Many agreements, for instance, distinguish between 
commercial and non-commercial research; 
technology transfers and capacity building rather than large 
inflows of cash compensation. 

Despite the fact that it is flexibility and realism about the returns that 
bring countries and companies to the negotiating table, most countries 
are still looking for the "green gold." For instance, in Colombia, Bio- 
Andes, a biotechnology corporation, was unable to obtain access 
because of the insurmountable number of bureaucratic requirements 
imposed by the Colombian Ministry of the Environment. 34 And in the 
Philippines only two out of thirty-seven applications have been approved 
for bioprospecting since 1995. 35 

Eventually countries will have to lower barriers to bioprospecting 
when they realize that many of the chemicals that interest biotechnol- 
ogy firms do not reside in one country or in one species but are actually 
shared among many countries and species. 36 Because genetic diversity 



33 Because agreements target already protected areas, they have not been 
instrumental in increasing the number of areas under protection, id. at iii. 

34 Andes Pharmaceuticals is a company that was formed in 1 993 as a response 
to the Convention on Biological Diversity to use biodiversity in developing coun- 
tries and to transfer technology to those countries. The repeated applications of 
Andes Pharmaceuticals for access to the biodiversity resources of Colombia were 
rejected, though, for what seem to be arbitrary reasons. Andes Pharmaceuticals has 
reportedly incurred $l million in transaction costs in its attempts to get access to 
Colombia's biodiversity resources. Andes Pharmaceuticals has decided not to oper- 
ate anymore in the Andean Pact countries. Another two requests for access have 
been made in Colombia. A request was made by a Colombian researcher operating 
from Germany who quitted after realizing how lengthy and costly the application 
process is. The other request by a local researcher has yet to be resolved. Id. at 43. 

35 Id. at iv. 

36 Joseph Henry Vogel, Bioprospecting (Final Report, Commissioned by the 
Biodiversity Support Program on behalf of the Inter- American Commission on 
Biodiversity and Sustainable Development in preparation for the Summit of 
Americas on Sustainable Development, Santa Cruz de La Sierra Bolivia, Dec. 6-8, 
1996). 



Rules for Exchange of Germplasm 147 

is rarely unique to a country or a species, companies pay less attention to 
the species and focus on the compounds that make them — compounds 
that are usually common in many species within a region. For instance, 
the biological diversity in Costa Rica is not unique to Costa-Rica but is 
shared by the other countries in the region. So when Costa Rica gives 
access to its resources, it actually gives access to the resources of the 
whole region. 

The low value attributed to the collection of species in comparison 
to the isolation of a profitable compound from a known useful species 
is reflected in the amount of royalties agreed in bioprospecting contracts. 
In many contracts royalties are reported to be as low as 0.2 percent of 
net sales. Even INBio in Costa Rica is believed to be receiving royal- 
ties as low as 2 percent of net sales. 37 

In order to ensure benefits from germplasm exploitation and to dimin- 
ish the possibility of relentless competition among the countries endowed 
with more or less the same resources, states have enacted regional rules 
for access to resources. 38 It is hoped that this cartel-like behavior would 
bridge the disparate interests and discourage free-rider behavior. 

Cartel organizations, however, are not always successful in curbing 
the free rider problem as the OPEC experience demonstrates. Moreover, 
germplasm resources are quite dissimilar from oil resources. As men- 
tioned above, markets for germplasm of untested quality do not exist 
the way markets for oil exist. In addition, a too restrictive national/ 
regional system could isolate a country/region from the networks of seed 
exchange and information. If a country/region restricts access to its 
genetic resources, it should expect a similar response from other coun- 
tries. A nationalistic view of germplasm could threaten international 
cooperation that is vital for biodiversity protection. 

Bioprospecting agreements or Material Transfer Agreements (MTAs), 
while not very profitable, are becoming the future means for transferring 



37 Id. at 4. 

38 Andean Community, Decision 39 1 : Common Regime on Access to Genetic 
Resources, July 1 996, available online at http://www.sice.oas.org/trade/JUNAC/ 
decisiones/DEC391e.asp. The countries in the cartel include Bolivia, Colombia, 
Ecuador, Peru, and Venezuela. 



148 Biodiversity and Human Rights 

germplasm. MTAs could allow for access while prohibiting any intel- 
lectual property rights over the germplasm, could allow for the asser- 
tion of intellectual property rights under an obligation to share the 
royalties, or could leave contentious matters to future negotiations. 

But the minimal profits brought by the MTAs raise the question 
whether it is cost-effective to enter such agreements. The minimal ben- 
efits brought by MTAs could be drained by the legal and administrative 
costs involved in negotiating benefit-sharing. 

Because of the high costs of negotiating and enforcing MTAs in com- 
parison with the benefits, MTAs are relatively rare. To avoid the costs 
associated with bilateral MTAs' negotiations, it has been proposed that 
a multilateral system for the transfer of germplasm is needed. 39 Such a 
system was adopted for the food and agriculture resources in 2001 after 
years of negotiations under the umbrella of the Treaty on Plant Genetic 
Resources for Food and Agriculture. If this treaty is ratified and gradu- 
ally improved to encompass all useful species and other species that may 
be of value, it could provide a relief for the bilateralism that plagues the 
international system and threatens food security. 

Beyond the cost-benefit evaluation of MTAs, fundamental questions 
can be raised about the type of development that can be achieved 
through MTAs. It is arguable whether the type of development propa- 
gated by these agreements will help developing countries exit the stage 
of "dependent development." For instance, the INBio functions because 
of the infusion of money from a large company of the North — money 
that may dry out any moment Merck decides that the INBio does not 
serve its objectives. Bioprospecting, like export agriculture, depends 
heavily on the economic prospects of the North and cannot address the 
roots of the economic problems of the South. 



39 Access to Plant Genetic Resources and the Equitable Sharing of Benefits 33 
(Issues in Genetic Resources, No. 4, a feasibility study prepared by 1PGRI, June 
1996) ("[t]o negotiate specific benefit-sharing arrangements with every country of 
origin will be daunting. To negotiate with individual farmers or communities will 
be virtually impossible. The enormous costs of such negotiations and the imple- 
mentation of multiple benefit-sharing arrangements would almost certainly result 
in a drastic reduction of the use of new germpalsm."). 



Rules for Exchange of Germplasm 149 

Developing countries must not rely on MTAs solely to take advan- 
tage of their germplasm. They need to develop their screening potential 
and eventually their biotechnology potential. It is easier for developing 
countries to enter the field of biotechnology than, for example, to mas- 
ter microelectronics. 40 The entry barriers into the biotechnology field 
are not that high especially for mastering traditional methods such as 
tissue culture. India is developing an expertise in biotechnology. 
Research institutes in the Southern Indian City of Bangalore have made 
impressive progress in biotechnology. 41 

1 .3. The Treaty on Plant Genetic Resources for Food 
and Agriculture: Toward a Multilateral System for 
Access to Plant Genetic Resources 

The Treaty on Plant Genetic Resources for Food and Agriculture was 
adopted after nine years of negotiations on November 3, 200 1. 42 The 
treaty has its roots in the International Undertaking on Plant Genetic 
Resources. 

The International Undertaking on Plant Genetic Resources was one 
of the first instruments to deal with germplasm resources for food and 
agriculture and it was not a legally binding instrument. In the 1983 ver- 
sion of the Undertaking it is mentioned that plant genetic resources are 
a heritage of mankind and should be available without restriction. 43 The 
Undertaking was modified in 1989 to clarify that "free access does not 
mean free of charge." 44 It was modified also in 1991 to clarify that the 



40 See Juma, supra note 1 , at 176. 

41 Fred Powledge, "Who Owns Rice and Beans?" 45(7) Bioscience 440, July 
1995. See also Ganapati Mudur, "New Rules Push Researchers Closer to Biotech 
Industry," 269 Science 297 (No. 5222), July 21,1995. 

42 International Treaty on Plant Genetic Resources for Food and Agriculture, 
Nov. 3, 2001, adopted by the FAO Conference, available online at ftp://ext- 
ftp.fao.org/waicent/pub/cgrfa8/iv/lTPGRe.pdf. 

43 Art. 1, Resolution 8/83, Twenty-Second Session, FAO Conference, Nov. 
5-23, 1983. 

44 Resolution 4/89, Twenty-Fifth Session, FAO Conference, Nov. 1 1-29, 1 989. 
The amended Undertaking also recognized plant breeders' rights, first recognized 
internationally under the UPOV Convention, supra note 1 8. 



150 Biodiversity and Human Rights 

principle that genetic resources are the heritage of mankind is subject 
to the "sovereignty of states over plant genetic resources." 

After the adoption of the Biodiversity Convention — which subjected 
the transfers of germplasm to bilateral controls— the need to clarify the 
status of agricultural and food resources that were freely exchanged for 
years became obvious. At issue here were the resources kept in the 
International Agricultural Research Centers. These resources were col- 
lected before the Biodiversity Convention and were considered to be de 
facto free access resources. The gene banks of the International 
Agricultural Research Centers contain 35-40 percent of world's undu- 
plicated collections. 

A new version of the Undertaking was put forward on July 1, 200 1, 45 
but many important provisions were still bracketed. For instance, the list 
of crops that would be free access was still debated. Some developing 
countries wanted to keep crops off the list in the hope of making money 
by charging fees bilaterally for access to those seeds. 46 Also patents on 
derived material were allowed but that provision was still bracketed. 47 
Another bracketed provision emphasized that the International 
Undertaking is subordinate to the World Trade Organization, meaning 
that the provisions regarding the protection of intellectual property 
adopted by the World Trade Organization would prevail if in conflict 
with the provisions of the International Undertaking. 48 

The negotiations on a new mandate for the International Undertaking 
progressed at a very slow pace because of the lack of interest and stuborn 
positioning coming from ingrained beliefs about the value of plant 
genetic resources. 

• Developing countries want to keep tight control over biodiver- 
sity resources either because they believe there is a lot of money 
to be made out of those resources or because they want to pre- 



45 See Report of the Commission on Genetic Resources for Food and 
Agriculture, Sixth Extraordinary Session, June 25-30, 2001, CGRFA-Ex 6/01/REP. 

46 Id. 

47 Art. 13(d). 
« Art. 4. 



Rules for Exchange of Germplasm 151 

vent others from benefiting from those resources. But as a com- 
mentator put it: "keeping yams off the Undertaking in the hope 
thatYam.com will make the NASDAQ or for the sake of retri- 
bution (to keep others from rampant yam patenting)" will even- 
tually jeopardize food security; 49 
• The North assumes that the best germplasm is already dupli- 
cated in its national gene banks. The South may still contain 
valuable material, but the interest of the North in such material 
is low. Many companies believe that biotechnology will achieve 
more by rearranging the genetic material in the already found 
seeds than what would be achieved by bioprospecting. In addi- 
tion, since the South does not have many national gene banks, 
it benefits most from the biodiversity resources located in the 
IARCs, 50 making the Undertaking an issue of relatively little 
importance to the North. 

Eventually an agreement was reached on November 2001 . The agree- 
ment does not differ substantially from the negotiating text of July. 5 ' The 
agreement aims to establish "an efficient, effective and transparent" 
multilateral system to facilitate access to germplasm for the purposes 
of food and agriculture, 52 and to share "in a fair and equitable way" the 
benefits from the utilization of resources. 53 The facilitated access pro- 
vided by the agreement will be accomplished through a standard 
Material Transfer Agreement (MTA), the provisions of which are to be 
adopted by the Governing Body. 54 It is clarified also that: 



49 "Frequently Unasked Questions about the Internationa! Undertaking on 
Plant Genetic Resources," RAFl Communique, April 18, 2001 , available online at 

http:// www.rafi.org. 

50 Id. 

51 See supra note 45. 

52 Art. 1 2.3(a). The treaty does not address "chemical, pharmaceutical and/or 
other non-food/feed industrial uses." 

53 Art. 10.2. 

54 Art. 1 2.4 (the Governing Body of the Treaty is composed by all Contracting 
Parties). See Arts. 19.1 and 19.2 (all decisions of the Governing Body shall be taken 
by consensus unless by consensus another method of arriving at a decision on cer- 
tain measures is reached). 



152 Biodiversity and Human Rights 

• access shall be granted expeditiously and free of charge; 55 

• recipients must not claim intellectual property rights on the plant 
genetic resources or their components "in the form received 
from the Multilateral System" (implying that modification, 
isolation, or purification could be subject to intellectual prop- 
erty rights); 56 

• access to genetic resources protected by intellectual property 
rights will be subject to national regulation consistent with the 
relevant international agreements; 57 and 

• access to resources found in situ should be subject to national 
legislation and, in the absence of such legislation, to standards 
set by the Governing Body established under the treaty. 

The treaty clearly covers the resources held in the ex situ collections 
of the International Agricultural Research Centers and other interna- 
tional institutions 58 and invites all other holders of plant genetic 
resources to include their resources in the Multilateral System. 59 The 
Governing Body reserves the right to take action — in terms of continu- 
ing to allow access to the system resources — against the legal and nat- 
ural persons that fail to include their resources within the system. 60 

Facilitated access is pre-conditioned on the equitable sharing of ben- 
efits. Such benefits may include exchange of information, 6 ' access to 
and transfer of technology, 62 and capacity building. 63 The most con- 
tentious issue during the negotiations was that of sharing the benefits 
from the commercialization of germplasm resources. The treaty pro- 



55 


Art. 12.3(b). 


56 


Art. 12.3(d). 


57 


Art. 12.3(f). 


58 


Art. 11.5. 


59 


Arts. 11.2 and 11.3 


60 


Art. 1 1 .4. 


61 


Art. 13.2(a). 


62 


Art. 13.2(b). 


63 


Art. 13.2(c). 



Rules for Exchange of Germplasm 153 

vides that the recipient of a product must pay to a Trust Account 64 an 
equitable share of the benefits arising from the commercialization of 
the product. 65 Such sharing is only voluntary in the case the product is 
still available without restriction to others for further research and breed- 
ing. 66 The Governing Body must decide in its first meeting the "level, 
form and manner of payment" in accordance with commercial practice. 67 
The benefits from these payments must flow to the farmers of all coun- 
tries, including the farmers of developing countries and countries with 
economies in transition. 68 

The treaty covers farmers' rights leaving their protection up to 
national law. 69 The treaty emphasizes the importance of the Global Plan 
of Action 70 and the ex situ collections of the International Agricultural 
Research Centers. 71 In this respect, the treaty calls for the development 
of international plant genetic resources networks 72 and for a global infor- 
mation system on plant genetic resources for food and agriculture. 73 

An issue that remained contentious until the final round of negotia- 
tions involved the Annex to the convention that covers the list of crops 
that are subject to the Multilateral System. Developing countries, assum- 
ing that bilateral contracts would be more financially rewarding, suc- 
ceeded in keeping many important crops and forages off the Annex. The 



<* Art. 13.3(f). 
« Art. 13.2(d). 

66 Art. I3.2(d)(ii) (however, the Governing Body may decide to make such 
contributions mandatory, even when the product is still available to others for 
research and breeding). 

67 Id. (the Governing Body may decide to exempt from such payments small 
farmers in developing countries and in countries with economies in transition). 



68 


Art. 13.: 


69 


Art. 9. 


70 


Art. 14. 


71 


Art. 15. 


72 


Art. 16. 


73 


Art. 17. 



154 Biodiversity and Human Rights 

convention covers 35 crops and 29 forages out of 100 food crops and 
1 8,000 forages important for food security. Food crops such as soya, 
sugar cane, oil palm and groundnut are missing from the Annex. 74 This 
omission is bound to create uncertainty about the proper means of access 
to those resources given that such resources are already located in the 
International Agricultural Research Centers and national gene banks. 

Another issue that caused heated debate was that of a potential asser- 
tion of intellectual property rights over germplasm resources. The com- 
promise provision provides that intellectual property rights cannot be 
declared on plant genetic resources for food and agriculture and their 
genetic parts or components "in the form received by the Multilateral 
System." 75 This means that modified resources, by bio-engineering and 
breeding, could be patented shifting the burden of proof to the patent 
system to determine whether a modification is innovative enough to 
qualify for protection. The provision, though, still does not clarify 
whether derived material such as varieties, genes and gene sequences 
can be patented. 76 A related proposal that subordinated the treaty to the 
TRIPs agreement 77 — as a means for guaranteeing the protection of 
intellectual property rights — was not eventually adopted. It was 
decided, instead, to include in the Preamble a provision that recited that 
all international agreements should be mutually supportive and that 
there must not be "a hierarchy between this treaty and other interna- 
tional agreements." 

The treaty was adopted with 1 16 votes in favor, zero against and two 
abstentions by the United States and Japan. Both countries cited con- 
cerns about the breadth of the protection of intellectual property rights 
under the treaty. 



74 P. Mulvany, "Global Seed Treaty Hangs in the Balance," 46 Biotechnology 
and Development Monitor 20 (200 1 ). 

75 Art. 12.3(d). 

76 The United States had supported a proposal according to which Article 13 
was modified to clearly specify that any derived material could be patented. See 
Mulvany, supra note 74. 

77 See supra note 23. 



Rules for Exchange of Germplasm 1 55 

1.4. Property Rights over Indigenous Peoples' 
Knowledge and Farmers' Rights 

The Protection of Indigenous Peoples 'Knowledge 

Given the protection of intellectual property rights over bio-engineered 
living organisms, developing countries have claimed that in both biodi- 
versity and biotechnology, the final product of legal protection is a liv- 
ing organism. If developed countries can grant intellectual property rights 
over genes, developing countries should be able to grant property rights 
over resources that would have disappeared without the input of indige- 
nous peoples and farmers. In this respect the Biodiversity Convention 
provides that the knowledge, innovations and practices of indigenous and 
local communities can be used only with the approval of those commu- 
nities and the benefits from the use must be equitably shared. 78 

Since intellectual property rights over natural resources cannot be 
enforced, it has been proposed that a system of sui generis rights must 
be established. Such rights, under the name "traditional resource rights," 
it is proposed, would constitute a framework into which the claims of 
indigenous groups could be integrated. 79 Such rights could be estab- 
lished for all resources in situ and ex situ that have been experimented 
with and have been singled out for use by indigenous peoples. 

Farmers 'Rights 

The 1989 version of the Undertaking on Plant Genetic Resources rec- 
ognized, in both Annexes I and II, farmers' rights 80 which are "vested 
in the international community, as a trustee for present and future gen- 
erations of farmers," so as to ensure full benefits to farmers and support 
for their contributions. 81 The International Treaty on Plant Genetic 

78 See supra note 29. 

79 Darrell A. Posey, "Intellectual Property Rights and Just Compensation for 
Indigenous Peoples," 6 Anthropology Today 13(1 990). 

80 According to FAO Resolution 4/89, farmers' rights involve rights arising 
from the past, present, and future contributions of farmers to conservation and 
improvement of plant genetic resources. See supra note 44. 

81 Id. 



156 Biodiversity and Human Rights 

Resources also clearly recognizes the rights of farmers 82 but leaves it up 
to national law to determine the breadth of those rights. 83 

A variety of mechanisms have been proposed for the protection of 
farmers' rights ranging from an international fund to market mecha- 
nisms or a mixture of mechanisms. 84 

The implementation of such mechanisms, though, could encounter 
problems: 85 

• Landraces present more variety in their gene pool than breeder 
varieties that are uniform and stable. Genetic techniques to iden- 
tify landraces could be costly and inconclusive. 
It would be difficult to identify the farmers to be compensated. 
There is no global institutional mechanism that represents the 
interests of farmers. Therefore either an international associa- 
tion of farmers must be established or states could represent the 
interests of farmers. But again which farmers of which states 
must be compensated will become an issue. 
The basis for the contributions to a fund that will compensate 
farmers could create significant conflict. 86 

As mentioned above, a mechanism was eventually adopted under the 
Treaty on Plant Genetic Resources for Food and Agriculture according 



82 Article 9.1 provides that "[c]ontracting Parties recognize the enormous con- 
tributions that the local and indigenous communities and farmers of all regions of 
the world . . . have made and will continue to make for the conservation and devel- 
opment of plant genetic resources which constitute the basis of food and agricul- 
ture production throughout the world." 

83 Art. 9.2. 

84 Commission on Plant Genetic Resources, Sixth Session, Item 8 of the 
Provisional Agenda, Revision of the International Undertaking on Plant Genetic 
Resources, Analysis of Some Technical, Economic and Legal Aspects for 
Consideration in Stage II: Access to Plant Genetic Resources and Farmers' Rights, 
June 19-30, 1995, CPGR-6/95/8 Supp. (CPGR- EX 1/94/5 SUPR). 

8 5 Id. 

86 It has been proposed that contributions could be based on the sales of 
improved varieties, the value added in agriculture, the gross domestic product or 
the scale of a country's contributions to the FAO or the UN. Id. at 54. 



Rules for Exchange of Germplasm 157 

to which companies must make payments to a Trust Account every time 
a patent removes germplasm from the public domain. 87 This provision 
imposes, for the first time, a tax on companies that use and experiment 
with germplasm when such experimentation is fruitful. Many issues, 
though, remain unresolved such as the level, form and manner of pay- 
ment. The Governing Body established under the treaty will eventually 
decide how the payments will be structured and may decide to establish 
"different levels of payment for various categories of recipients." 88 

2. THE IARCS AS GATEKEEPERS OF PLANT 

GENETIC RESOURCES 

2.1. The Establishment and Evolution of the lARCs 

The Consultative Group on International Agricultural Research (CGIAR) 
was established in 1971, 89 as an informal group of private and public 
donors and it is supporting 18 IARCs. The CGIAR is co-sponsored 
jointly by the FAO, the United Nations Development Program (UNDP), 
the UNEP and the World Bank. The CGIAR is not a formal legal entity; 
it works because of the consensus of its member-donors. 90 The estab- 
lishing principle of the CGIAR is decentralization and networking. 91 
The last thing that member-donors wanted, when they put together the 



87 See supra notes 64 and 65. 

8 8 Art. 13(2)(d). 

*» Before the birth of the CGIAR in 1971, the Ford and the Rockefeller foun- 
dations established four international agricultural research centers: the International 
Rice Research Institute (IRR1), the Center for the Improvement of Maize and Wheat 
(CIMMYT), the International Institute for Tropical Agriculture (IITA), and the 
International Center for Tropical Agriculture (CIAT). These institutions helped to 
create optimism about the future of the world food. Except for serving as gene 
banks, these institutions are involved in breeding high-yield rice and wheat vari- 
eties. See M.S. Swaminathan, "Seeds and Property Rights: A View from the CGIAR 
System," in Seeds and Sovereignty, supra note 2, at 23 1 , 232. 

90 A statement of the CGIAR organizational structure, objective and compo- 
sition was adopted in the first meeting of the Group. See Warren C. Baum, Partners 
Against Hunger: The Consultative Group on International Agricultural Research 
107 (World Banked., 1986). 

91 Juma, supra note 1 , at 89. 



158 Biodiversity and Human Rights 

CGIAR, was for it to become another bureaucratic international institu- 
tion. The CGIAR's lack of legal personality and the IARCs' lack of inter- 
national legal personality have undermined the international mission of 
the CGIAR system. The movement for the nationalization of genetic 
resources including resources located in the IARCs has increased efforts 
to strengthen the international legal personality of the IARCs. 

The CGIAR started with four Centers— the CIAT, the CIMMYT, the 
IITA, and the II RI that had already been established as nonprofit insti- 
tutions by the Rockefeller and the Ford foundations — in Colombia, 
Mexico, Nigeria, and Philippines, respectively. Today the number of 
Centers has increased to 18, and the voluntary contributions that sus- 
tain them are about 300 million annually. 92 The Centers operate from 
year to year because their funding is determined on an annual basis. 
Often funding is difficult to ensure and the Centers have to shrink their 
operations. 93 Since funding comes from voluntary donors, 94 center/ 



92 Selcuk Ozgediz, Governance and Management of the CGIAR Centers 139 
(CGIAR Study Paper Number 27, World Bank ed., 1991) [hereinafter CGIAR 
Governance]. 

93 See CGIAR Mid-Term Meeting: Summary of Proceedings and Decisions, 
1994 [hereinafter 1994 Meeting]. 

94 The CGIAR membership includes the following countries: Australia, 
Austria, Bangladesh, Brazil, Canada, China, Colombia, Cote d' Ivoire, Denmark, 
Egypt, Finland, France, Germany, India, Indonesia, Iran, Ireland, Italy, Japan, 
Kenya, Korea, Luxembourg, Mexico, the Netherlands, Nigeria, Norway, Pakistan, 
the Philippines, Romania, Russia, Spain, Sweden, Switzerland, Syria, the United 
Kingdom, and the Unites States. 

Membership includes also foundations — the Ford Foundation, the International 
Development Research Center, the Kellogg Foundation, and the Rockefeller 
Foundation; international and regional organizations— the African Development 
Bank, the Arab Fund for Economic and Social Development, the Asian 
Development Bank, the European Commission, the FAO, the Inter- American 
Development Bank, the International Fund for Agricultural Development, the 
OPEC Fund for International Development, the United Nations Development 
Program; the United Nations Environment Program and the World Bank. 

Over the last two years the CGIAR has lost 20 percent of its funding. See Kunda 
Dixit, "Asia-Agriculture: Green Revolution to Gene Revolution," Inter Press 
Service, Nov. I, 1995. 



Rules for Exchange of Germplasm 1 59 

donor relationships are extremely important. 95 In general, the CGIAR 
system has worked well and the Centers' relationships with their host 
countries have been good. 96 As mentioned before, the Centers have 
played a crucial role in the preservation of food and agricultural 
resources. Well over 100,000 samples of materials held in the CGIAR 
collections were distributed in 1990 for use worldwide. 97 

The Centers characterize themselves as independent and auto- 
nomous nonprofit organizations of an international status. A more accu- 
rate description for most Centers until recently was that of nonprofit 
institutions with an international mission. Still many Centers do not 
have an international legal personality. Only some Centers have estab- 
lished firmly their international character. The nonprofit character of 
the Centers has to do with the administrative structure of the Centers 
which resembles more that of a nonprofit corporation rather than that 
of an international organization. The Centers are administered by a 
board of trustees 98 and a director. The director is the decision-maker at 
the Centers. 99 The Technical Advisory Committee (TAC) of the 



95 CGIAR Governance, supra note 92, at 7. 

96 Id. at xx. 

97 Diversity for Development: The Strategy of the International Plant Genetic 
Resources Institute 16 (1PGRI ed., 1993) [hereinafter IPGRI Strategy]. 

98 For a description of who can be elected on the board of trustees, see CGIAR 
Newsletter, May 1996. 

99 The initial boards were modeled after the boards of the Rockefeller and the 
Ford Foundations. After the CGIAR took over in 1 97 1 , members of the boards were 
replaced by CGIAR nominees who serve on a personal basis. The boards of the 
CGIAR Centers resemble corporate boards rather than boards of nonprofit institu- 
tions because they are small and have high attendance rates. However, the boards 
do not direct like corporate boards. The Centers are director-led rather than board- 
led. The director is the most powerful person at the Centers. The director is the per- 
son who prepares the policy and strategy of the Centers. The boards basically 
oversee the policymaking of the director. The boards of the IARCs have been sub- 
jected to criticism for lacking accountability for the Centers' performance and for 
being too much influenced by donors and host countries. See CGIAR Governance, 
supra note 92, at 16, 17, 25. The desire to keep on the boards nationals of major 
donors does not necessarily mean that the candidates selected are the most respon- 
sive to the Centers' needs. Id. at 2 1 . 



160 Biodiversity and Human Rights 

CGIAR 100 makes recommendations on research programs and priori- 
ties, monitors performance through program and budget reviews, and 
supervises the external reviews 101 of the Centers. 102 

Individual donors allocate their contributions to the Center of their 
choice. The World Bank contributes the difference between the approved 
budgets and the collective donor contributions. 103 The governance sys- 
tem of the Centers is based on trust and confidence. The CGIAR deci- 
sions are not binding on individual Centers since the CGIAR has no 
formal legal personality and the Centers are independent and autonomous. 104 

Some Centers such as the CIMMYT, the IRRI, and the International 
Potato Center (OP) focus on one commodity for which they have a 
global mandate. Other Centers have a regional or a global mandate for 
more than one commodity, for example, the International Center for 
Tropical Agriculture (CIAT), the International Center for Agricultural 
Research in Dry Areas (ICARDA), the International Institute for Tropical 
Agriculture (IITA), the West Africa Rice Development Organization 
(WARDA), the International Crops Research Institute for the Semi-Arid 
Tropics (ICRISAT) and the International Livestock Research Institute 
(ILRI). Other Centers perform specialized functions in food policy 



100 The TAC is comprised by a chairperson and 1 8 scientists drawn equally from 
developed and developing countries. 

101 In order to compensate for the lack of accountability of the Centers, the 
CGIAR has initiated External Management Reviews (ERMs). These periodic 
reviews are the only way for the CGIAR to receive information about the perfor- 
mance of the Centers. Also donors express their discontent with the Centers by 
withdrawing funding. See CGIAR Governance, supra note 92, at 25. 

102 See Warren C. Baum, Partners Against Hunger: The Consultative Group on 
International Agricultural Research (World Bank ed., 1986). The CGIAR is served 
also by a Secretariat provided by the World Bank and based in Washington DC. The 
Secretariat reports to the CGIAR chairperson, a vice president of the World Bank 
designated by the Bank's president after consultation with the CGIAR members. 
The Secretariat coordinates fund-raising among donor members, provides admin- 
istrative services, and keeps donors informed about the scientific programs and 
finances of the Centers. Id. at 140. 

'03 Id. 

•<w Id. at 25. 



Rules for Exchange of Germplasm 1 61 

research — the International Food Policy Research Institute (IFPRI) and 
the International Service for National Agricultural Research (ISNAR). 
In recent years the CGIAR has sponsored Centers that work in the area 
of agroforestry and forestry such as the International Center for 
Research in Agroforestry based in Kenya (ICRAF) and the Center for 
International Forestry Research based in Indonesia (CIFOR). 105 These 
Centers focus on the conservation and management of biodiversity in 
tropical forests. The CIFOR seeks to develop novel approaches for the 
management and preservation of existing forests. The efforts of the 
CIFOR are based on a realistic agenda. The CIFOR does not seek to 
protect all tropical forests. This would be infeasible because a growing 
population will force the conversion of many forests into agricultural 
fields and human settlements. The CIFOR's mandate is to ensure that 
only land suitable for agriculture is converted and that the richest in 
diversity forests are adequately protected. 106 

The International Plant Genetic Resources Institute (IPGRI), formerly 
known as International Board of Plant Genetic Resources (IBPGR), is 
one of the most significant policymaking Centers. The IBPGR was 
established in 1974, when the loss of valuable landraces became so 
widespread that it was recognized that an international network of gene 
banks was indispensable. In the first years of its life the IBPGR was 
involved in collecting germplasm from all around the world and deposit- 
ing it in gene banks. It also assisted in gene bank development in the 
third world. 107 Today the principal objective of the IPGRI is to assist the 



105 Except for the Centers affiliated with the CGIAR, there are other regional 
Centers such as the Centro Agronomico Tropical de Investigacion y Ensenanza 
based in Costa Rica (CATIE) and the Asian Vegetable Research and Development 
Center based in Taiwan (AVRDC). 

106 "Poor Farmers Could Destroy Half of the Remaining Tropical Forest," 
CGIAR Forestry Press Release, Aug. 5, 1996, available online at http://www. world- 
bank.org/html/cgiar/press/forest.html. 

107 In the first decade of its life the IPGRI focused on collecting threatened 
germplasm and facilitating long-term conservation in the base collections main- 
tained by 40 international and national gene banks. By the year 1991, almost 
200,000 samples had been collected by missions sponsored by the IBPGR. An 
important contribution of the IPGRI is the introduction of a standardized system 
for characterizing germplasm. This system has been adopted by institutions all over 
the world. See IPGRI Strategy, supra note 97, at 6. 



162 Biodiversity and Human Rights 

national 108 and regional programs of developing countries. Another 
objective is to build crop and regional networks. 109 The IPGRI has 
been transformed from an organization heavily involved in plant col- 
lection to an organization playing a supportive role in national and 
regional programs. 

A consensus seems to be developing today that national programs 
constitute the core of international efforts to save genetic resources. 110 
Actually the whole orientation of the IARCs seems to have changed 
since their inception. The purpose of the CGI AR to increase the pro- 
duction of food worldwide 111 has been amended to stress partnership 
with national programs. 1 12 It is increasingly felt that the "more food" 
rationale for continued agricultural research is simplistic and anachro- 
nistic and that if the CGIAR is to command the support of the interna- 
tional community additional emphasis should be placed on the 
alleviation of poverty and hunger. ' ' 3 The 1995 Lucerne Declaration and 
Action Program adopted at the CGIAR Ministerial-Level Meeting 
firmly established that the renewed purpose of the CGIAR is "to com- 
bat poverty and hunger in the world by mobilizing both indigenous 
knowledge and modern science" with a greater emphasis on North- 
South cooperation. ' l4 



108 National programs include: The Central Research Institute for Food Crops 
in Bogor, Indonesia which preserves mostly rice varieties. The Vavilov institute in 
Russia, the NSSL in the United States, the Instituto del Germoplasma in Italy, the 
Plant Germplasm Institute at the University of Kyoto, Japan. There are also maize 
institutes in Portugal and in Mexico (the Mexican National Program (IN1A)). See 
Donald L. Plucknett et al., Gene Banks and the World's Food 1 19-40 (1987). 

109 One such successful network was established in Europe, the European 
Cooperative Program for Crop Genetic Resources Networks (ECP/GR), and has 
stimulated the development of 22 European crop databases. See IPGRI Strategy, 
supra note 97, at 7. 

"° W.atl3. 

1 ' ' Increase of agricultural production was not only a goal but also a value held 
by the Centers. See CGIAR Governance, supra note 92, at 10-1 1 . 

112 IPGRI Strategy, supra note 97, at 1 5. 

1 13 1 994 Meeting, supra note 93. 

114 CGIAR Ministerial-Level Meeting, Lucerne, Switzerland, Feb. 9-10, 1995, 
available online at http://www.worIdbank.org/html/cgiar/publications/declara. html. 



Rules for Exchange of Germplasm 163 

Developing countries have viewed the IARCs as institutions created 
to strengthen the agricultural superiority of the North. The clientele rela- 
tionship between the donors — who frequently are developed countries — 
and the Centers has assisted in perpetuating such perceptions. The 
Lucerne Action program, therefore, specifically provides that the 
CGIAR must broaden its membership to include more developing coun- 
tries and must increasingly participate in the National Agricultural 
Research Systems (NARS) 1 15 of developing countries. The agricultural 
research institutions of the host countries have gradually become impor- 
tant clients of the Centers located in those countries. The majority of the 
ICRISAT's activities in India are in conformity with the needs of Indian 
research institutions. The IRRI has filled also most of the needs for a 
national program in the Philippines. 116 However, the donor/clientele rela- 
tionship is still strong and the Centers need to complete the transition 
"from a donor/client approach to equal partnership of all participants from 
the South and North within the CGIAR system." 117 But the desire to 
increase the participation of the South should not become so prevalent as 
to detract from the international mission of the Centers. Agricultural pro- 
grams in Eastern Europe may need the support and expertise of the 
CGIAR and should not just be relegated to secondary status. 1 18 

Also the Centers aim to become more open and to encourage partic- 
ipation in their activities of private and non-governmental organizations. 
Today private companies are not significant clients of the Centers. But 
this is expected to change in the future. 1 19 It is increasingly realized that 



115 Public sector agricultural research is particularly important in developing 
countries. In most developing countries there is not much private agricultural 
research activity and national agro-industries are in their infancy. Most agricultural 
products are sold to developing countries by transnational corporations. See "Why 
Is Public Agricultural Research Needed?" CGIAR Newsletter, May 1996. 

116 CGIAR Governance, supra note 92, at 9 1 . 

1,7 See Lucerne Action Plan, CGIAR Ministerial-Level Meeting Feb 9-10, 
1995, available online at http://www.worlclbank.org/html/cgiar/publications/ 
declara.html. The goals of the Lucerne Declaration and Lucerne Action Plan were 
reaffirmed in the 1996 CGIAR Mid-Term Meeting. 

118 According to the Lucerne Action Plan, research in Eastern Europe is to be 
undertaken only if separate and additional funding is secured. See id. 

119 CGIAR Governance, supra note 92, at 89. 



164 Biodiversity and Human Rights 

more centralization and coordination is needed in the Centers activities. 
While the CGIAR is committed to "creating a system-wide program on 
genetic resources," it is still far from becoming an organization that 
deals in a systematic fashion with genetic resources. Systematization 
and centralization, it is generally agreed, should not be pursued to the 
point of eradicating the informal character of the Centers. 120 

The Committee of Board Chairs (CBC) and the Center Directors 
Committee (CDC) of the CGIAR have recently recommended the cre- 
ation of a federation of Centers and an action plan for the immediate 
steps to improve inter-Center collaboration. 121 The federation consist- 
ing of a coordinator (called "federation office") and each individual cen- 
ter as a separate legal entity has been proposed as the best organizational 
structure to deal with the challenging mission of the centers. The vision, 
goal and mission of the CGIAR, emphasized in the 2000 Mid-Term 
Meeting, are to reduce poverty in developing countries. 122 Other rec- 
ommendations for the better functioning of the Centers include the cre- 
ation of an Executive Council, the transformation of TAC into a Science 
Council and the creation of a System Office for integrated communi- 
cation strategy and fund raising. 123 



120 1 994 Meeting, supra note 93. During the 1 994 Meeting it was decided that 
a fifteen-member Steering Committee must be established in order to coordinate 
the activities of the Centers. However, proposals for a "single board" for all the 
Centers and the division of the Centers' programs into system-wide and regional 
activities was rejected. According to the Lucerne Action Plan: "[c]ollegiality and 
informality are important and durable assets of the CGIAR. Therefore, the CGIAR 
should not be established as a formal international organization, but could benefit 
from strengthening its decision making processes and consultative mechanisms." 
See Lucerne Action Plan, supra note 1 1 7. 

121 Charting the CGlAR's Future— Reshaping the CGIAR Organization, Oct. 
19, 2001, 1CW/00/07-7 (CBC/CDC Report on Governance, Structure and 
Management). 

122 Draft Interim Executive Council Recommendations on CGIAR Reform, Oct. 
1 5, 2001 , AGM/01/04 (An Integrated Proposal for the Annual General Meeting 
2001). 

™ Id. 



Rules for Exchange of Germplasm 165 
2.2. The Legal Personality of the lARCs 

The Centers' legal personality has acquired importance since, after the 
adoption of the Biodiversity Convention, there have been increasing 
demands for the repatriation of genetic material located at the Centers. 

The legal personality of the Centers is ambiguous, a breed between 
a national organization and an international organization. The four pio- 
neer Centers were created by an agreement between the host govern- 
ment and individual donors and not by a treaty between states, the 
formal way of institution-making in international law. However, the con- 
stitutional character of the Centers has evolved and some of the Centers 
have successfully stabilized their international personality. In 1992 the 
IBPGI was renamed IPGRI, and the agreement that transformed the 
legal personality of the Center was signed by states making, thus, the 
IPGRI an international institution. 124 The international legal personal- 
ity of the IRRI has also been recognized explicitly in an agreement 
signed by states "recognizing the international legal personality of the 
International Rice Research Institute." 125 

While some Centers have kept their status as nonprofit institutions, 
others have reformed their constitutions, which are now appended to 
agreements signed by international institutions that play the role of the 
founding institutions of the Centers. The CIMMYT constitution was ini- 
tially appended to an agreement signed by Mexico and the Rockefeller 
foundation; but it is now based on an agreement between the World 
Bank and the UNDP. 126 A similar arrangement governs the legal status 
of the CIAT 127 While agreements between international organizations 



124 See Agreement on the Establishment of the international Plant Genetic 
Resources Institute, Oct. 9, 1992. 

125 See Agreement Recognizing the International Legal Personality of the 
International Rice Research Institute, May 19, 1995. 

126 Agreement between the International Bank for Reconstruction and 
Development and the United Nations Development Program on the Establishment 
of the Centra Internacional de Mejoramiento de Maiz y Trigo, April 29, 1988. 

127 Agreement between the International Bank for Reconstruction and 
Development and the United Nations Development Program on the Establishment 
of the Centra Internacional de Agricultura Tropical, May 28, 1986. 



166 Biodiversity and Human Rights 

to establish a third organization are not widely encountered in interna- 
tional law, the explicit treaty-making ability of the World Bank and the 
implicit treaty-making ability of the UNDP should render the interna- 
tional legal personality of the CIMMYT and the CI AT indubitable.' 2 * 

The CIP's constitution is still based on a decree of the Peruvian gov- 
ernment and an agreement of scientific cooperation between the gov- 
ernment of Peru and the North Carolina State University in the United 
States.' 29 The constitution of the CIP does not even mention that the 
Center is an institution of an international character. However, the agree- 
ment between the North Carolina State University and the Peruvian gov- 
ernment clearly provides that by the establishment of the CIP the potato 
programs of all countries in the world will be able "to use to a maxi- 
mum the germplasm that exists in Peru, in Andean countries and other 
areas of the world." 130 

The IITA is based on a decree of the Nigerian government. And, 
while the nonprofit and autonomous character of the Center is men- 
tioned, there is no mention of an international character. 131 Actually the 

128 An international organization may have treaty-making powers if such pow- 
ers are explicitly or implicitly mentioned in its constitution. While the constitution 
of the World Bank explicitly confers to the Bank treaty-making power, the same is 
not true with the UNDP. The treaty-making power of the UNDP can be inferred 
from the extensive powers that have been granted to the UNDP in its constitutive 
instrument, the General Assembly Resolution that established the UNDP and 
General Assembly Resolutions that subsequently strengthened the role of the 
UNDP. However, since the treaty-making power of the UNDP is not explicit in its 
constitutive instrument, it can still be challenged. See, e.g., GA Res. 2688 (XXV), 
Dec. 11, 1970. 

For the treaty-making power of international organizations, see generally Ian 
Brownlie, Principles of Public International Law 683-84 (1990). See also D.W. 
Bowett, The Law of International Institutions 304-08 (1975); Chris N. Okeke, 
Controversial Subjects of Contemporary International Law: An Examination of the 
New Entities in International Law and their Treaty Making Capacity 1 93-94 ( 1 974). 

129 The Scientific Cooperation Agreement between Peru and the North Carolina 
University has been approved by Decree Law No. 20025, May 23, 1973. See also 
Supreme Decree No. 240-68-AG which approved the by-laws of the CIP. 

"0 Preamble (d). 

131 Decree No. 32 — International Institute of Tropical Agriculture. 



Rules for Exchange of Germplasm 167 

Center has yet to formalize its affiliation with the CGIAR. Other 
Centers are still based on contracts between private foundations and host 
governments. The ICRISAT was created in 1972 by an agreement 
between the Ford Foundation acting on behalf of the CGIAR and the 
Indian Government, and it is still based on the same agreement. 132 

The establishment of the ICARDA is based on a unique arrangement. 
An agreement between Syria and the International Development 
Research Center (IDRC), a Canadian agency acting as an Executive 
Agency for the CGIAR, established the Center, whose Charter was 
eventually signed by the World Bank, the UNDP and the FAO. The bilat- 
eral agreement between the IDRC and Syria and the signature of the 
ICARDA charter by three international institutions certainly establishes 
the ICARDA as more than a national institution. 133 

A question that requires investigation, because it is related with the 
ownership issue, is the future of germplasm in case the Centers are dis- 
solved. According to the CIMMYT constitution, if the CIMMYT is 
dissolved, its assets will be retained by the host country or other col- 
laborating countries after an agreement between the governments of 
those countries and the Board of the CIMMYT in consultation with the 
CGIAR. 134 Similar provisions are included in the IPGRI, the ICARDA, 
and the CIP constitutions. 135 However, dissolution is not automatic and 



132 Constitution of International Crops Research Institute for the Semi-Arid 
Tropics (ICRISAT), July 5, 1972. 

133 Agreement between the Government of Syrian Arabic Republic and the 
International Development Research Center acting as an Executive Agency on 
behalf of the CGIAR for the establishment of the International Center for 
Agricultural Research in the Dry Areas (ICARDA), June 28, 1976. 

134 Article 14 of the Constitution of Centro Internacional de Mejoramiento de 
Maiz y Trigo: 

In case of dissolution, the assets of CIMMYT, situated in the host country 
or other collaborating countries shall be retained by such countries and used 
for similar purposes, or distributed to institutions having purposes similar to 
CIMMYT in the respective countries after agreement between the govern- 
ments of these countries and the Board in consultation with the members of 
the CGIAR [emphasis added]. 

135 The dissolution provisions of the CIP are located in the ninth Clause of the 



168 Biodiversity and Human Rights 

does not depend on the will of the host country. Dissolution is gener- 
ally subject to the approval of a Center's board. Members of the Board 
are mostly donors. And the host country, which is to gain most from 
the dissolution, may not have a significant say in the dissolution of 
the Centers. 

Still, the dissolution provisions undermine the international charac- 
ter of the Centers, since their assets are not to be inherited by an inter- 
national organization but by national governments. The dissolution 
provisions need to be amended in order to grant the FAO or another 
international institution the authority to decide the future of the assets 
of the Centers. 

The establishing documents of other Centers do not even provide for 
the fate of genetic resources after dissolution. For instance, the Nigerian 
decree establishing the ITTA explicitly provides that upon the termina- 
tion of the ITTA all physical plant and equipment shall become the 
property of the Nigerian government. No explicit provision is included, 
though, on the disposition of germplasm resources. 136 

Other constitutions have addressed the issue of the future of 
germplasm resources after dissolution. For instance, the IRRI charter 
provides that in case the Institute is terminated all physical plant, equip- 
ment, and other assets will become the property of the University of 
Philippines with the "the exception of such funds and other assets, like 
the Institute 's gene bank and genetic resources, that shall have been 
assigned in trust to the Institute for others or donated to the Institute, 
and shall have been made subject to some other conditions in respect 
to their disposition upon dissolution of the Institute [emphasis 
added]." 137 It would have bolstered the international character of the 
IRRI, if an international institution, like the FAO, were to become the 
caretaker of all germplasm resources and were to decide their future 
disposition. 



Agreement for Scientific Cooperation Between the Government of Peru and the 
North Carolina State University. 

136 Art. 14, Decree No. 32. 

137 Art. XV, Section 2, Charter of the International Rice Research Institute. 



Rules for Exchange of Germplasm 169 

The WARDA does not share the general structure of other IARCs. 
The WARDA has been established as a regional association. Member- 
ship in the association is restricted to the African States of the West 
African Region. The WARDA constitution provides that if the associa- 
tion is terminated, measures must be taken for the proportionate distri- 
bution of the assets of the association among Member States, with the 
exception of installations, equipment, and material owned by the 
Association which "shall, as far as possible continue to be used for the 
purpose of which they had originally been acquired." The WARDA con- 
stitution provides explicitly that "[installations, equipment and mater- 
ial made available to the Association by Cooperating States and 
Organizations shall be disposed of in consultation with the States and 
Organizations concerned." This provision ensures that germplasm which 
could be traced back to the countries of origin could be returned to those 
countries, if those countries so request. It is clarified, therefore, that 
germplasm coming from other countries and regions is not material 
upon which the association has ownership. 

Only the dissolution provisions of the ICRISAT seem to give the 
CGIAR a greater margin of discretion about the future of germplasm 
resources after dissolution. The constitution provides that "[o]n disso- 
lution the disposition of all other assets [except for land and fixed cap- 
ital improvements] shall be determined by the Consultative Group on 
International Agricultural Research after receiving recommendations 
from the Governing Board, such disposition to be to organizations 
which are formed and operated exclusively for scientific and educa- 
tional purposes." 138 The constitution of the International Service for 
National Agricultural Research (ISNAR) grants to the members of the 
CGIAR significant discretion on what to do with the ISNAR 's assets. 139 
However, the ISNAR is not a gene bank. Its goal is to strengthen the 
agricultural research capabilities of developing countries. 140 Another 
research institute, the International Food and Policy Research Institute 



138 Art. XII, Section 2, ICRISAT Constitution. 
i» Chapter XIII, ISNAR Constitution. 
140 Art. Ill, ISNAR Constitution. 



170 Biodiversity and Human Rights 

authorizes a domestic court (the United States District Court of the 
District of Columbia) to decide which organizations will get the 
IFPRI assets. 141 

2.3. The Status of the lARCs' Germplasm Collections 

In 1994, twelve IARCs signed agreements to place their gene bank 
resources under the auspices of the FAO. 142 Under the agreements, 143 
the Centers remain trustees of the collections for the benefit of the inter- 
national community and particularly of developing countries. 144 The 
Centers are placed under the auspices of the FAO as part of a network 
of gene banks. 145 Under Article 9 of the agreements, the Centers are 
under an obligation to provide germplasm and related information 
directly to users without restriction through the FAO, for the purposes 
of scientific research, plant breeding or genetic resource conservation. 
While the term "without restriction" could be interpreted to mean that 
resources are freely available, this is not the case. In a joint statement 
the FAO and the CGIAR 146 specified that "without restriction" should 
be interpreted in accordance with the Convention on Biological 
Diversity and should not be understood in any way as affecting the rights 
of countries under the convention. Article 9 is also subject to Article 10, 



141 Sixth Article of Incorporation of the International Food Policy Research 
Institute. 

142 The Centers that are now under the auspices of the FAO are: the CI AT, the 
CIMMYT, the CIP, the ICARDA, the International Center for Research in 
Agroforestry (ICRAF), the ICRISAT, the IITA, the International Livestock Center 
for Africa (ILCA), the IPGRI, the International Network for the Improvement of 
Banana and Plantain (IN I BAP), the IRR1, the WARDA and the CIFOR. 

143 Twelve agreements were signed between each individual Center and the 
FAO. The agreements were signed by the CGIAR chairman and the FAO director. 

144 Art. 3, Commission on Plant Genetic Resources, First Extraordinary 
Session, The International Network of Ex Situ Germplasm Collections, Nov.l, 
1994, CPGR-Ex1/94/Inf.5/Add .1 [hereinafter Agreement]. 

145 Art. 2, id. 

146 Joint Statement of the FAO and the CGIAR Centers on the Agreement 
Placing CGIAR Germplasm Collections under the Auspices of the FAO, Annex 2, 
Agreement, id [hereinafter Joint Statement]. 



Rules for Exchange of Germplasm 171 

which provides that the Centers must ensure that any entity that receives 
germplasm from them is bound by the conditions of Article 3(b). Article 
3(b) provides that the Centers shall not claim legal ownership or intel- 
lectual property rights over the germplasm contained in their collections 
or "related information." 147 In other words, anybody who receives 
germplasm and the Centers themselves cannot assert intellectual prop- 
erty rights over the germplasm. The Joint Statement of the FAO and the 
CGIAR provides that Article 10 could be satisfied by MTAs that require 
the recipient not to seek intellectual property rights over the genetic 
material and to transfer the same obligation to subsequent recipients. 148 

While the Centers and the recipients cannot declare intellectual prop- 
erty rights over the germplasm the same is not true for the country of 
origin. Article 10 does not "apply to the repatriation of germplasm to 
the country that provided the germplasm," leaving open the possibility 
for that country to declare ownership or intellectual property rights over 
the germplasm. 149 The bottom line is that germplasm can still be trans- 
ferred, but there are strings attached regarding possible intellectual prop- 
erty rights that may be claimed over it. 

The agreements between the IARCs and the FAO may have under- 
lined the international status of the Centers, but the ownership of their 
collections remains nebulous. Since germplasm is certainly not owned 
by the FAO and by the International Agricultural Research Centers, the 
question is whether it is owned by the country of origin. Article 10 does 
not explicitly provide so, but it certainly suggests so. 

It must be noted that the FAO had proposed four types of model 
agreements (A, B, C, D) for the purpose of securing the international 
status of the collections located in the International Agricultural 
Research Centers. Model agreements A and B provided that germplasm 
collections would be placed under the jurisdiction of the FAO, while 
model agreements C and D provided that the collections would be 



147 "Related information" refers to information compiled with respect to indi- 
vidual accessions. Such information includes passport, characterization and eval- 
uation data, and information on indigenous knowledge. Id. 

148 Id. 

149 Art. 10(b), Agreement, supra note 144. 



172 Biodiversity and Human Rights 

placed under the auspices of the FAO. The agreements eventually signed 
with the IARCs are agreements that place the Centers under the aus- 
pices of the FAO. Under-the-auspices agreements are also negotiated 
with different countries that wish to place their resources under an inter- 
national umbrella. 150 

Needless to say, an under-the-jurisdiction agreement would have 
given the FAO more effective control over the IARCs collections, and, 
potentially, power to decide once and for all the future of the collections. 
The agreements that place gene banks under the auspices of the FAO 
implicitly recognize that the FAO is not the owner of the resources. By 
a process of elimination, since neither the FAO nor the IARCs are the 
owners, the country of origin must be the owner. An alternative inter- 
pretation is that no one has ownership over the pre-convention resources 
and, thus, the resources belong to the public domain. 

It is obvious from the developments that followed the adoption of the 
FAO/IARCs agreements that the issue that preoccupies countries of ori- 
gin of germplasm is not ownership per se. Asserting ownership over 
germplasm will amount to nothing more than a blank assertion since 
most profits from germplasm are not derived just from ownership but 
from intellectual property rights. Countries are more concerned with 
ensuring that nobody else asserts property or intellectual property rights 
over germplasm than asserting their own property rights. The IARCs 
have to inform formally their clients about their obligation not to claim 
property or intellectual property rights over germplasm, and their deci- 



150 Commission on Plant Genetic Resources, Sixth Session, Item 9.2 of the 
Provisional Agenda, Progress Report on the international Network of Ex Situ 
Germplasm Collections under the Auspices and/or Jurisdiction of FAO, June 19-30, 
1 995, CPGR-6/95/1 2. Thirty-two countries have already indicated their willingness 
to make their gene banks part of the International Network of the FAO. Collectively 
these countries hold 46 percent of the world's germplasm accessions. The IPGRI 
has a register of national and international collections. The register includes a total 
of about 50 institutions in 18 countries which have agreed to conserve germplasm 
and make it available to the international community. Recently the 1PGR1 has 
agreed that the register should merge with the International Network of the FAO. 
The International Network then will contain 70 percent of the total accessions. See 
Commission on Plant Genetic Resources, Sixth Session, Item 8 of the Provisional 
Agenda, Revision of the International Undertaking on Plant Genetic Resources, 
June 19-30, 1995, CPGR-6/95/8 (CPGR-EX 1/94/5), at 10-11. 



Rules for Exchange of Germplasm 173 

sion to pass on the same obligation to all future germplasm recipients. 
From now on, order forms for germplasm located in the IARCs will 
include a standard provision that germplasm recipients must abstain 
from claiming ownership or intellectual property rights over germplasm 
received and that the original recipient must ensure that all successive 
recipients will not assert any such rights either. 151 Some Centers have 
gone as far as to challenge patents on germplasm even if that germplasm 
was not obtained from their own gene banks. 152 

What will happen to the resources located in the International 
Agricultural Research Centers depends on the implementation of the 
Treaty on Plant Genetic Resources and the agreements that need to be 
re-negotiated between the Centers and the FAO. The FAO-CGIAR trust 
agreements expire in 2002 and they need to be renewed or be replaced 
with new agreements. 

The International Treaty on Plant Genetic Resources has attempted 
to clarify the role of International Agricultural Centers and the status of 
their ex situ collections. The treaty calls upon the IARCS to sign agree- 
ments with the Governing Body of the treaty to ensure that the resources 
they keep and are listed in Annex I of the treaty are subject to the 
Multilateral System. 153 All the other resources — not covered by Annex 
I — will be available under the MTAs that have been signed between the 
IARCs and the FAO. I54 These MTAs will be amended by the Governing 
Body so that countries of origin do not have to sign a Material Transfer 
Agreement for germplasm originating in their territory and that the ben- 
efits from the commercialization of germplasm accrue in the Trust 
Account provided by the treaty. 155 Contracting parties agree to give the 



151 Commission on Plant Genetic Resources, Sixth Session, Joint Report by the 
FAO and the International Plant Genetic Resources Institute (on Behalf of the 
CGIAR Centers) on the Implementation of the Agreement Signed Between the FAO 
and the CGIAR Centres on 26 October 1994, June 19-30, 1995, CPGR-6/95/12 
ADD.]. 

152 See supra note 13. 

153 Art. 15.1(a). 

154 Art. 15.1(b). 

155 Id. 



174 Biodiversity and Human Rights 

IARCs access to their resources provided that these resources are 
included in Annex I of the treaty. For all other resources collected after 
the entry into force of the treaty, though, and not covered by the Annex, 
access can be provided based on bilateral agreements between the coun- 
try of origin and the IARCs. 

3. REGULATED FREE ACCESS AS THE OPTIMAL 
SYSTEM OF ACCESS TO PLANT GENETIC 
RESOURCES 

Countries can gain access to the plant genetic resources of another coun- 
try by: 

• Free exchange: the system that prevailed before the 1980s seed 
wars and led to the establishment of the first gene banks; 
Bilateral agreements: the system applied today for access to in 
situ resources; 

• Conforming with the Multilateral System: the system applied for 
some resources essential for food and agriculture. 

The free access system, as applied before the 1980s, has been mar- 
ginalized because of the politics involved. The profits made from breed- 
ing/bio-engineering have rendered developing countries mindful of the 
potential of genetic resources that reside within their territory. Devel- 
oping countries are determined to take advantage of their position as 
rich-resource countries to gain financial advantages from the North in 
terms of royalties, capacity building and access to technology. 

Bilateral access is today the prevailing mode for transferring 
germplasm. Access to all in situ resources and many resources found in 
gene banks but not covered by the multilateral treaty are subject to bilat- 
eral negotiations between the country of origin and the company/ 
researcher who would like to experiment with the resources. As men- 
tioned before, such agreements entail tremendous transaction costs 
and have alienated companies from investing in research in the devel- 
oping world. 

The Multilateral System was recently adopted under the Treaty on 
Plant Genetic Resources for Food and Agriculture. As its name suggests, 
this system applies only to resources that are used for food and agriculture. 



Rules for Exchange of Germplasm 175 

It also covers a limited number of such resources. The system has not 
been tested yet in practice. The principle it proposes, however, for a mul- 
tilateral system of access, is quite attractive, especially when compared 
with bilateral access. A standard document that includes information 
about the material, the state of origin and the recipient and a standard 
clause about the rights that could be declared over the material could 
significantly facilitate the transfer of germplasm in the current environ- 
ment of distrust. 

In the international arena, we can see today elements of all the three 
systems. Countries with national gene banks can still subscribe to free 
access if they so wish. The Multilateral System applies only to a certain 
number of ex situ resources for food and agriculture. The rest of the 
resources could still be free access resources or be subject to bilateral 
agreements depending on the wishes of the government that controls 
the resources. For instance, a company fearful of the obligations it may 
have to undertake under the Multilateral System — in terms of benefit 
sharing and restrictions on intellectual property rights — could still 
approach the national laboratories of the United States or other coun- 
tries, that have not signed the multilateral treaty, to see whether it can 
get more favorable access. As mentioned before, the same resources that 
are located in IARCs or are in the hands of developing countries are 
found often in national gene banks. The success of the Multilateral 
System depends then on how quickly it will become "universal" in terms 
of the countries that subscribe to it and how quickly it will become 
"comprehensive" in terms of the number of resources it covers. A suc- 
cessful Multilateral System for food and agriculture could eventually be 
expanded to apply to the exchange of in situ resources. 

Which system is most desirable for the world today depends on the 
goals states wish to accomplish. If food security is the paramount goal, 
researchers and companies should be allowed to access and experiment 
with resources with virtually no controls. If, as some argue, biodiver- 
sity is about to disappear in terms of landraces or wild resources, efforts 
must concentrate on collecting as many species as possible and preserve 
them in as many gene banks as possible. New methods must be invented 
also to allow for the ex situ preservation of wild species and patent sys- 
tems must be strengthened to give companies and researchers incentives 
to collect and experiment with germplasm. 



176 Biodiversity and Human Rights 

If the goal, on the other hand, is to compensate the farmers of devel- 
oping countries for their contributions to biodiversity, a bilateral or mul- 
tilateral system with provisions on benefit sharing and a closer 
evaluation of the validity of intellectual property rights claims seems to 
be desirable. 

The Multilateral System for food and agricultural resources, estab- 
lished under the Treaty on Plant Genetic Resources, attempts to achieve 
both goals. To what extent these frequently antithetical goals can be 
reached simultaneously remains to be seen. A lot will depend on the 
standardization and clarity the system will bring in international trans- 
actions. Given the current state of confusion about the legality and legit- 
imacy of germplasm transfers, the contribution that the Multilateral 
System could make is to legitimize and facilitate such transfers. In other 
words, the System could function like other trade regulating systems. 
The purpose of most international regulations for the trade in goods is 
the facilitation of trade among countries. As the national barriers to 
international trade are falling, the purpose of most international trade 
regulations is to establish clear, uniform and comprehensive standards 
that would be acceptable to all states and would facilitate commerce. It 
is hoped that through the establishment of international standards, states 
will find it more difficult to inhibit trade based on the pretense that their 
higher national (environmental/safety/labor) standards mandate so. 

This study supports a Multilateral Free Access System that functions 
more as a mechanism that facilitates free access to resources rather than 
as a mechanism that inhibits such access. It is proposed here that a reg- 
ulated free access system is preferable to unregulated free access for two 
reasons: 

• Given the politics involved, it is virtually impossible to go back 
to unregulated free access. 

• Without documentation on the chain of transfer of germplasm, 
it is impossible to establish a mechanism that would ensure that 
some of the benefits from commercialization trickle down to 
farmers. Establishing a mechanism to pass on some of the ben- 
efits to farmers will address the strong perceptions of inequity 
and will legitimize the transfer of germplasm. 



Rules for Exchange of Germplasm 177 

To accomplish regulated free access, the standards established, under 
the Multilateral System, must be clear, uniform, and comprehensive: 

A uniform Multilateral System presupposes that the same rules 
apply to all the resources covered by the system. 
An unambiguous system presupposes that there will be a rea- 
sonable level of clarity about the obligations and the rights of 
the parties affected by the system. 
• A comprehensive system entails coverage of all existing useful 
resources both in situ and ex situ including but not limited to 
resources useful for food and agriculture. 



The best way to achieve the goals of uniformity and clarity is through 
a Standard Material Transfer Agreement that would apply to the transfer 
of all resources. As long as the agreement clearly delineates the rights 
and obligations of the parties, it could become a successful means for the 
transfer of genetic resources. The International Treaty on Plant Genetic 
Resources for Food and Agriculture prescribes for such an agreement 
but, as mentioned above, given the mandate of the treaty, it will not cover 
all resources. Also given that the treaty is still considered ambiguous with 
regard to the intellectual property rights that can be declared over plant 
genetic resources, more work needs to be accomplished so that the stan- 
dard agreement is free, as much as possible, of ambiguity. 

Overall, it would be ill-advised to abandon the system of intellectual 
property rights (including breeders' rights and patent rights) over 
germplasm that has been modified or isolated and can be used com- 
mercially due to the human ingenuity. On the other hand, though, tradi- 
tional knowledge should not be assumed to be free access knowledge.' 56 
The International Treaty on Plant Genetic Resources has established a 
mechanism to which corporations will contribute a percentage from the 
commercialization of genetic resources that have been removed from 
the public domain. Compensation systems for indigenous' and farmers' 
knowledge should be explored further to ensure that people receive just 
compensation for their contributions to the evolution of biodiversity. 



156 Traditional healers, for instance, are reluctant to disclose information about 
the plants they use — clearly signaling that such knowledge is not free access knowl- 
edge. Nevertheless, ethnobotanical research has been frequently transcribed from 
indigenous peoples' practices without their prior consent. 



Conclusion 



The international policies for biodiversity protection are based on a 
series of antinomies: 

international instruments that foster nationalism and bilateral- 
ism; 
• local wildlife management and privatization efforts undermined 
by trade prohibitions and restrictions; 

general lack of monitoring and implementation interspersed by 
measures of strict enforcement that violate basic human rights; 
an international gene bank system that stumbles to fulfill its 
mandate through a maze of national controls over germplasm 
resources. 

These antinomies accompanied by an overwhelming lack of urgency 
and the ensuing lack of funding are evidence that biodiversity protec- 
tion is of a low priority status in the agenda of many states. States have 
been disinterested in developing a coherent framework for addressing 
biodiversity protection issues. 

The purpose of this study is to provide such a framework — a frame- 
work that is based on what realistically can be achieved today by inter- 
national law in the area of international biodiversity management. As 
mentioned before, the causes of biodiversity conversion run deep into 
the conditions of poverty in the developing world. The eradication of 
these conditions would involve much more than just international envi- 
ronmental lawmaking. It would involve a radical change of many 
national and international policies in favor of the poor and disenfran- 
chised. Such a radical change does not seem to be forthcoming. 

This study, in its attempt to provide a coherent framework for biodi- 
versity protection, takes the conditions of the developing world as a given. 
Since an improvement of these conditions will not happen overnight, it is 
proposed that biodiversity protection must be based on three pillars: 



179 



180 Conclusion 

respect for human dignity and human rights — biodiversity protec- 
tion should not be pursued if it results in human rights violations; 
international biodiversity management through international 
gene bank management and transnational public or private land- 
scapes; and 

international guidelines for the local management of wildlife 
supported by the free trade in many of the species considered 
endangered today. 

Human Rights Standards for International Biodiversity Management 

It is disappointing that even today, with all the awareness about human 
rights, eco-development efforts proceed despite the protests of local pop- 
ulations who are evicted deprived of food and basic amenities, and who 
are even many times tortured or killed. 

This study proposes that human rights standards become the mini- 
mum basic standards around which biodiversity protection policies 
develop. Basic human rights such as the right to food and prohibitions 
against torture and inhumane and degrading punishment should become 
the center around which biodiversity protection evolves. 

It is likely that many states will raise objections against the inclusion 
of human rights standards in the conservation agenda. Many states view 
human rights instruments and the scrutiny of their policies by human 
rights groups as an unnecessary intrusion into their national affairs. 
States will probably see no reason to expand this scrutiny to biodiver- 
sity protection and will resist the inclusion of human rights norms in 
biodiversity protection instruments. But the absence of human rights 
norms in biodiversity protection instruments should not discourage 
human rights organizations from scrutinizing eco-development under a 
human rights perspective. 

International Biodiversity Management In and Outside Nature 

The second pillar of the framework for biodiversity protection involves 
the international management of biodiversity resources. International 
management, as it is understood here, does not involve the creation of 



Conclusion 181 

an international institution that would manage biodiversity on an inter- 
national scale. On the contrary, it is proposed that most of biodiversity 
management should be configured and applied locally. 

Some management efforts, however, could benefit from the economies 
of scale put together by national governments and international institu- 
tions. One of them involves gene bank management. Gene bank man- 
agement is a par excellence international activity. Effective gene bank 
management involves worldwide efforts to collect and disseminate 
seeds. A sincere international effort for gene bank development would 
involve the multiplication of efforts to collect germplasm worldwide, to 
use it and experiment with it. Gene bank management also involves 
streamlining many of the existing collections. In order to achieve these 
desirable results, states need to lower the barriers for access to their 
resources, to reaffirm the policies for the free exchange of seeds located 
in international gene banks, and to find innovative ways to compensate 
indigenous peoples and farmers for their contributions to the evolution 
of biodiversity. 

States also could benefit from the economies of scale of bringing 
together some areas they wish to protect under regional management 
networks. Since ecosystems do not know national boundaries, a lot can 
be achieved in terms of efficiency and effectiveness by private or pub- 
lic efforts to develop regional networks of landscapes. Many such efforts 
have stumbled, though, because of the economic and political dispari- 
ties among the countries within the same region. 

Local Management of Wildlife Supported by Free Trade 

The third pillar on which international management is based is that of 
local management of resources supported by free trade. The interna- 
tional management of resources does not involve local micro-manage- 
ment. While this study proposes that the international system could 
provide guidelines for the management of resources, decisions on what 
to do in particular environments and circumstances should rest with the 
people who live in the area. 

Local management will not be easy, especially since in many coun- 
tries groups with conflicting interests often claim rights to the same 



182 Conclusion 

resource. One way effective local management may be achieved is 
through privatization of wildlife resources. For local management to 
become successful it must be secured by local institutions that are rep- 
resentative of the population and secure land tenure. Without secure land 
tenure and strong institutional support local management will fail. 

Support for local management does not imply lack of national man- 
agement (or regional policies in the case of transnational landscapes). 
It means that national/regional policies must be based on the input of 
people who are asked to implement them and must be incentive-based 
rather than rule-oriented. National/regional policies that rely on strict 
enforcement by violating human rights norms must not be tolerated and 
must be criticized by human rights and environmental organizations. 

The best stimulus that international policymaking can provide for 
local management is free trade. States must eventually phase out the 
prohibitions and restrictions included in the CITES Convention and 
allow for the free trade of products and species that are managed locally. 
Reestablishing free trade in wildlife will provide the proof that local 
management systems can succeed and the incentives to protect many of 
the species that are listed as endangered today. 

The Role of International Environmental Law 

The Biodiversity Convention is a framework convention that could be 
interpreted strictly to oppose international biodiversity management. 
However, as mentioned before, some of the provisions of the conven- 
tion especially those on restoration, indigenous peoples rights and 
poverty can be used to plant the seeds of international biodiversity 
management. 

In terms of rhetoric, it is proposed here that future biodiversity pro- 
tection instruments replace the word "nature reserves" with the term 
"managed landscapes" or "diverse landscapes." It is proposed also that 
the terms "conservation" and "preservation" be phased out in favor of 
"biodiversity management" and "biodiversity protection." Also the 
words "human rights" and "human dignity" must permeate all instru- 
ments on biodiversity protection measures. 



Conclusion 183 

In terms of standard setting, human rights standards can be estab- 
lished for biodiversity protection. Human rights standards are monitored 
vigilantly by human rights groups. These groups can contribute to the 
enforcement of such rights by affecting a state's reputation. No state 
wants to be branded a human rights violator. 

Gene bank management is also amenable to international standard 
setting. There is no reason not to standardize globally the procedures 
applied in gene banks. There is no reason not to establish rules that 
would unequivocally transform the International Agricultural Research 
Centers into global institutions. International guidelines can be pre- 
scribed also for the management of public or private transnational 
landscapes. 

Overall, local management systems can flourish if they are supported 
by free trade, international minimum standard setting and national/ 
regional/international guidelines. Overall, biodiversity management 
would have more chances to succeed if the needs of people who man- 
age biodiversity resources are granted priority in national and interna- 
tional agendas. 



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Index 



(Asterisk denotes web site reference.) 



AFRICAN CHARTER ON 
HUMAN AND PEOPLES 
RIGHTS, 24, 26 

AFRICAN CONVENTION ON 
THE CONSERVATION OF 
NATURE AND NATURAL 
RESOURCES, 104, 106, 108 

AGRICULTURE 

Sustainable agriculture, 14 
' AMERICAN ANTHROPOLOGICAL 
ASSOCIATION (AAA), xi, 62 

ANGOLA, 17 

ASEAN AGREEMENT ON THE 
CONVENTION OF NATURE 
AND NATURAL RESOURCES, 
109, 114 

ASIAN VEGETABLE RESEARCH 
AND DEVELOPMENT CENTER 
(AVRDC), 161 

BANGKOK DECLARATION ON 

HUMAN RIGHTS, 24 
BIODIVERSITY 
Biodiversity as ecosystem preser- 
vation, 34-36 
Biodiversity as ecosystem evolu- 
tion, 36-38 
Favorable and unfavorable 
results, 36-38 
Competing approaches to manag- 
ing, 38-42 
Biodiversity loss as extinction, 

34-36 
Definition, 34, 38 



Gene banks 

See GERMPLASM 
Genetic diversity, 1 24 
Human habitation and industrialism 

Biodiversity loss and, 35 
Human intervention, effect of, 

37-38 
International rules for protection 

of, 3 
International biodiversity 
management 
(See also INTERNATIONAL 
BIODIVERSITY 
MANAGEMENT) 
Chart of, 7 
International rules for national 
conservation, 103-134 
(See INTERNATIONAL 
RULES FOR NATIONAL 
CONSERVATION) 
Measurement of species, 124, 125 
National biodiversity management 
International biodiversity man- 
agement and, 4 
Non-consumptive uses of, 74-76 
Protection methods, 61-101 
(See also BIODIVERSITY 
PROTECTION METHODS) 
Restoration as a biodiversity pro- 
tection method, 91-93 
CITES and, 121 
Difficulty of, 92 
BIODIVERSITY PROTECTION 
METHODS, 61-101 



195 



196 Index 



BIODIVERSITY PROTECTION 
METHODS (continued) 
Assumptions behind the policies, 

33-34 
Biodiversity conversion and, 46-47 
Biodiversity for wealth, 90-9 1 
Co-management, 70-74 
Comparing and choosing methods, 
97-101 
Ability to protect biodiversity, 

99-100 
Human dignity, 97-98 
Wealth effect, 98-99 
Conclusions, 179-183 
Free trade, 181-182 
Human rights standards, 1 80 
International biodiversity man- 
agement, 180-181 
Role of international environ- 
mental law, 182-183 
Wildlife, 181-182 
Endangered specieds 
Black markets, 67-68 
Poachers, 68-69 
Prohibiting/restricting trade in 
endangered species, 66-69 
Gene banks, 93-97, 100 

See also GERMPLASM 
Grass roots cooperation, 1 6 
Nature reserves to co-manage- 
ment, 70-74 
Non-consumptive uses of biodi- 
versity, 74-79 
Bioprospecting, 74-76 
Ecotourism, 77-79 
Extractive resedrves, 76-77 
Restoration as a biodiversity pro- 
tection method, 91-93, 98 
Strict enforcement in nature 

reserves, 61-66 
Treaties and, 1 1 1-114 
Wildlife management, 79-91 
Government overload and, 
85-88 



Privatization as community 

empowerment, 79-85, 100 
Wildlife industry and privatiza- 
tion, 88-89 
Successful privatization, 
90-91 
BIOPROSPECTING, 44, 74-76 
BLACK MARKETS, 67-68, 1 10 
BOTSWANA, 11,62,66 
BREEDERS' RIGHTS, 141 

CAMEROON, 16 

CENTER DIRECTORS COMMIT- 
TEE (CDC), xi, 164 

CENTRO AGRONOMICO DE 
INVESTIGACION Y ENSE- 
NANZA (CATIE), 161 

CITES 
See CONVENTION ON THE 
INTERNATIONAL 
TRADFE IN ENDAN- 
GERED SPECIES OF 
WILD FLORA AND 
FAUNA 

CENTER FOR INTERNATIONAL 
FORESTRY RESEARCH 
(CIFOR).xi, 161, 170 

CENTRAL AFRICAN REPUBLIC, 
16 

COMMITTEE OF BOARD 
CHAIRS (CBC), xi, 164 

COMMON REGIME ON ACCESS 
TO GENETIC RESOURCES, 
147* 

COMMUNAL AREA MANAGE- 
MENT PROGRAMME FOR 
INDIGENOUS RESOURCES 
(CAMPFIRE), xi , 69, 80-83, 
84-85 

COMMUNITY OF THE CONVEN- 
TION ON INTERNATIONAL 
TRADE IN ENDANGERED 
SPECIES OF WILD FLORA 
AND FAUNA, 107 



Index 197 



COMMUNITY-BASED NATURAL 
RESOURCES MANAGMENT 
(CBNRM), xi, 83-85 
COMPETING RATIONALES, 42-60 
Economic arguments, 44-46 
Benefits to poor of developing 

world, 45 
Biodiversity protection, 45^6 
Portfolio effect, 45 
Human dignity, 46-60 

(See also HUMAN RIGHTS) 
Protecting biodiversity for biodi- 
versity, 42-46 
Aesthetic arguments for biodi- 
versity, 42^14 
Planet is not just for humans but 
all life, 42-43 
CONCLUSIONS, 179-183 
(See also specific entries) 
CONGO, 16 
CONSERVANCIES 
Disease problem, 87 
Privatization reduces government 
burden, 85-88 
CONSULTATIVE GROUP ON 
INTERNATIONAL AGRICUL- 
TURAL RESEARCH (CGIAR), 
xi, 138, 157etseq., 162*, 167, 
169, 170, 173 
CONVENTION CONCERNING 
THE PROTECTION AND INTE- 
GRATION OF INDIGENOUS 
AND OTHER TRIBAL AND 
SEMI-TRIBAL POPULATIONS 
IN INDEPENDENT COUN- 
TRIES, 54 
CONVENTION FOR THE ESTAB- 
LISHMENT OF THE EURO- 
PEAN AND MEDITERRANEAN 
PLANT PROTECTION ORGA- 
NIZATION, 136 
CONVENTION FOR THE PRO- 
TECTION OF THE WORLD 
CULTURAL AND NATURAL 



HERITAGE, 106 
CONVENTION ON BIOLOGICAL 
DIVERSITY, 1,2, 103, 107, et 
seq., 112 et seq., 134 
Species loss and, 1 et seq. 
CONVENTION ON INTERNA- 
TIONAL TRADE IN ENDAN- 
GERED SPECIES, 129 
CONVENTION ON NATURE 
PROTECTION AND WILDLIFE 
PRESERVATION IN THE WEST- 
ERN HEMISPHERE, 113 
CONVENTION ON THE CON- 
SERVATION OF EUROPEAN 
WILDLIFE AND NATURAL 
HABITATS (Bern Convention), 104 
CONVENTION ON THE CON- 
SERVATION OF MIGRATORY 
SPECIES OF WILD ANIMALS, 
106, 109) 
CONVENTION ON THE INTER- 
NATIONAL TRADE IN ENDAN- 
GERED SPECIES OF WILD 
FLORA AND FAUNA (CITES), 
xi,66etseq., 106, 109 
Biodiversity and human rights, 

119-120 
Biodiversity Convention and, 115 
et seq. 
Framework of, 129-130 
Implementation, 123-127 
In situ conserv ation, 121-123 
Limitations, 117-118 
Nationalism, 118-119 
Restoration, 98, 99, 112, 121 
Biodiversity loss problem, 

127-131 
Endangered species and, 66-69 
Failure of, 128-129 
Gene bank developoment, 

120-121 
Human rights, 119-120 
Monitoring/enforcement, 116-117 
Structure, 115 



198 Index 



CONVENTION ON WETLANDS 
OF INTERNATIONAL IMPOR- 
TANCE (Ramsar Convention), 
107, 109 

COVENANT ON ECONOMIC 
SOCIAL AND CULTURAL 
RIGHTS, 26 

DEEP ECOLOGY, 42 
DEVELOPING COUNTRIES 
CITES and, 119 

Indigenous peoples, 54 et seq. 

Nature preserves and, 65 

People in biodiversity areas, 
53-60 

Squatters, 54 et seq. 
DRAFT DECLARATION ON THE 

RIGHTS OF INDIGENOUS 

PEOPLES, 59 

ECOLOGY 
Definition, 93 

ECOTOURISM, 44, 77-79 
Negative aspects of, 78-79 

ELEPHANTS, 11, 17,62,79 
Campfire program and, 82-83 
Ivory trade, 66, 67 

ELI LILLY, 137 

ENDANGERED SPECIES 
Prohibiting/restricting trade in, 
66-69 

ENVIRONMENTAL IMPACT 
ASSESSMENT (EIA), xi, 127 

ENVIRONMENTAL LAWS 
Not a top priority, 1 1 
Role of international environmen- 
tal law, 182-183 

EUROPEAN ECOLOGICAL NET- 
WORK (EECONET), xi 

EUROPEAN COOPERATIVE PRO- 
GRAM FOR CROP GENETIC 
RESOURCES NETWORKS 
(ECP/GR), 162 

EUROPEAN UNION (EU), 1 1 1, 127 



EXTERNAL MANAGEMENT 

REVIEW (ERM), 160 
EXTINCTION, 35, 36 
EXTRACTIVISM, 44 

Extractive reserves, 76-77 

FOOD AND AGRICULTURE 
ORGANIZATION (FAO), xi, 1, 
167, 170-174 
FORESTS 
Conversion into agricultural la 
nds, 49-51 
Slash and burn agricuture, 49 
Destruction of, 1 
Logging as cause of primary forest 

loss, 47-49 
Preservation of, 34 
Prohibiting tropical timber trade, 

47-48, 110 
Secure land tenure, 51-53 
Common property regimes, 

51-53 
Land distribution, 52 
Privatization, 52-53 
FREE TRADE 
Wildlife and, 28 

GENE BANKS, 5, 6, 7, 41-42, 
93-97,98,99, 111-112, 183 
(See also GERMPLASM) 
Ability to protect biodiversity, 

100-101 
Background to, 93 
CITES and, 120-121 
DNA banks, 94 
Establishment of, 94 
Vulnerability of, 95-96 
GERMPLASM, 95 
(See also INTERNATIONAL 

AGRICULTURAL 

RESEARCH CENTERS) 
Bilateralism versus freed access 

multilateralism, 125-157 
Botanical gardens, 97 



Index 199 



Compensation for developing 

nations, 33 
Convention on Biological 
Diversity 
Bilateral agreements as to plant 
genetic resources, 143-149 
Dissolution issue, 167-170 
Free access to, 31-33 
Germplasm resources and IP 

rights, 135-143, 170-174 
IP rights over bio-engineered 

organisms, 142-143 
IP rights over biodiversity 

resources, 140 
Plant breeders' rights and the 
UPOV Convention, 
140-141 
Restricted access to, 17-18 
Seed wars, 135-139 
Intellectual property rights and, 

32-33 
International gene bank develop- 
ment, 31-33 
International rules for the 

exchange of, 135-177 
Nationalism and bilateralism, 33 
Plant genetic resources, 33 
Potato programs, 166 
Property rights 

Farmers' rights and, 155-157 
Regulated free access to plant 

genetic resources, 174-177 
Treaty on Plan Genetic Resources 
for Food and Agriculture, 
149-154 
Multilateral system for access 
to, 149-154 
GLOBAL ACTION PLAN, 105, 

112 
GLOBAL ENVIRONMENT 
EMERGING MARKETS FUND, 
133 
GLOBAL ENVIRONMENT 
FACILITY (GEF), xi, 63, 131 



GRAZING, 14 
GREENPEACE, 139 
GROSS NATIONAL PRODUCT 
(GNP), 22 

HUMAN RIGHTS, 182 

Asian concept of, 24 

Biodiversity protection and human 
dignity, 46-60 

CITES and, 119-120 

Conclusions as to, 1 80 

Defending the poor and, 23 

Human dignity and human soli- 
darity, 19-21 

Human dignity and human rights, 
21-25,97-98 

List of relevant to biodiversity 
management, 26 

Standards for, 2, 9-12, 180, 183 

Treaties and, 108-109 

Violations of, 9-12 

INCENTIVES 

Free trade in wildlife, 28 

Motivation for development of 
standards, 26-28 
INBio INSTITUTE, 74-75 
INDIGENOUS PEOPLE, 54-60, 

182 

Advantages taken of, 57 

Amazon and, 59 
CITES and, 119 

Definition, 54 

Environmentalists and, 58 

Hunting and gathering societies, 56 

Noble savages, 56-57 

Protection of knowledge and 
property rights, 155-157 

World Bank and, 10 
INDONESIA, 47 
INTELLECTUAL PROPERTY 

RIGHTS 

{See as subhead to other topics) 

Diamond v. Chakrabarty, 140 



200 Index 



INTERNATIONAL AGRICUL- 
TURAL RESEARCH CENTERS 
(IARC), xi, 5, 96, 136, 150, 
170-174, 175 
Establishment and evolution of, 

157-164 
Gatekeepers of plant genetic 

resources, 157-174 
Legal personality of, 165-170 
Role of, 5 

Status of Germplasm collections, 
170-174 
INTERNATIONAL BIODIVER- 
SITY MANAGEMENT 
Assumptions about biodiversity, 
33-60 
Competing definitions, 34-36 
Biodiversity as ecosystem 

evolution, 36-38 
Biodiversity Convention and, 182 
Biodiversity loss as conversion, 

36-38, 46-47 
Chart, 7 

Competing approaches to, 38-39 
Competing rationales, 42-60 
(See also COMPETING 

RATIONALES) 
Human dignity, 46-60 
Prevailing rationale, 42-46 
Conclusions, 180-181 
Culling animals, 40 
Current international policies, 
1-17 
Emphasis on national manage- 
ment standards, 12-14 
Lack of human dignity stan- 
dards, 9-12 
Restricted access to germplasm 

resources, 17-18 
Transnational protected areas, 

15-17 
Wildlife trade and local man- 
agement, 15 
Germplasm resources, 31-33 



Human dignity as standard for, 

9-60 
Landscape management vs nature 

reserv es, 39-40, 70-74 
Management as a necessity, 

39-42 
Proposed international biodiver- 
sity management, 1 8-3 1 
Biodiversity crosses state 
boundaries, 29-3 1 
Transfrontier projects neces- 
sary, 29 
Cooperative management, 30 
Free trade in wildlife, 28 
Human dignity and human 

rights, 19-25 
International conservancies, 3 1 
Local management standards 
and incentive mechanisms, 
25-28 
Obstacles to, 30 
Restoration to bring back original 
ecosystem, 41,98, 99, 100 
INTERNATIONAL BOARD OF 
PLANT GENETIC RESOURCES 
(IBPGR), xi, 161 etseq. 
INTERNATIONAL CENTER FOR 
AGRICULTURAL RESEARCH 
IN DRY AREAS (ICARDA), xi, 
160, 170 
INTERNATIONAL CENTER FOR 
RESEDARCH IN AGRO- 
FORESTRY (ICRAF), xi, 161, 
170 
INTERNATIONAL CENTER FOR 
TROPICAL AGRICULTURE 
(CIAT),xi, 138, 157, 160,165, 
166, 167, 170 
INTERNATIONAL COV ENANT 
ON CIVIL AND POLITICAL 
RIGHTS, 23, 26 
INTERNATIONAL COVENANT 
ON ECONOMIC, SOCIAL AND 
CULTURAL RIGHTS, 23 



Index 201 



INTERNATIONAL CROPS 
RESEARCH INSTITUTE FOR 
THE SEMI-ARID TROPICS 
(ICRISAT), xi, 160, 163,167, 
169, 170 

INTERNATIONAL DEVELOPMENT 
RESEARCH CENTER (IDRC), 
xi, 167 

INTERNATIONAL FOOD POLICY 
RESEARCH INSTITUTE 
(IFPRI),xi, 161 

INTERNATIONAL INSTITUTE 
FOR TROPICAL AGRICULTURE 
(IITA),xi, 157, 160, 166, 168, 170 

INTERNATIONAL LABOR 
ORGANIZATION (ILO), xii 

INTERNATIONAL LEGAL MATE- 
RIALS (ILM), xi 

INTERNATIONAL LIVESTOCK 
CENTER FOR AFRICA (ILCA), 
170 

INTERNATIONAL LIVESTOCK 
RESEARCH INSTITUTE (ILRI), 
xii, 160 

INTERNATIONAL MAIZE AND 
WHEAT IMPROVEMENT CEN- 
TER (CIMMYT), xi, 96, 157, 160, 
165, 166, 167, 170 

INTERNATIONAL NETWORK 
FOR THE IMPROVEMENT OF 
BANANA AND PLATAIN 
(INIBAP), 170 

INTERNATIONAL PLANT 
GENETIC RESOURCES INSTI- 
TUTE (IPGRI), xii, 161, 165, 167, 
170 

INTERNATIONAL POTATO CEN- 
TER (CIP),xi, 160, 166, 167, 170 

INTERNATIONAL RICE 
RESEARCH INSTITUTE (IRRI), 
xii, 157, 163, 165, 170 

INTERNATIONAL RULES FOR 
NATIONAL CONSERVATION, 
103-134 



Biodiversity protection methods, 

111-113 
CITES Convention and the 

Biodiversity Convention, 
115-131 
(See also CONVENTION ON 
THE INTERNATIONAL 
TRADFE IN ENDAN- 
GERED SPECIES OF 
WILD FLORA AND 
FAUNA) 
Conventions 

Structure of, 105-108 
Funding for the protection of 
biodiversity, 131-134 
Human dignity standard, 108-109 
International treaties, 103-114 

Characteristics of, 103 
Monitoring/implementation, 

109-111, 123-127 
State sovereignty, 104-105 
Structure, 105-108 
Transnational management of 
transboundary resources, 
113-114 
INTERNATIONAL SERVICE FOR 
NATIONAL AGRICULTURAL 
RESEARCH (ISNAR), xii, 161, 169 
INTERNATIONAL TREATY ON 
PLANT GENETIC RESOURCES 
FOR FOOD AND AGRICUL- 
TURE, 149 
INTERNATIONAL TROPICAL 
TIMBER ORGANIZATION 
(ITTO), xii 
INTERNATIONAL UNION FOR 
THE CONSERVATION OF 
NATURE AND NATURAL 
RESOURCES (IUCN), xii, 65, 71, 
73 
INTERNATIONAL UNION FOR 
THE PROTECTION OF NEW 
VARIETIES OF PLANTS 
(UPOV), xii, 140, 141, 149 



202 Index 



JAPANESE OVERSEAS ECONOMIC 
CORPORATION FUND, 133 

KENYA, 62, 63, 66 

Elephant poaching and, 1 1 
KOREAN PENINSULA, 17 

LANDSCAPES 

(See also other topics) 

Ability to protect biodiversity, 100 

Definition, 70 

Treaties and, 113 

Wealth effect, 99 
LEIPZIG DECLARATION AND 

GLOBAL ACTION PLAY .. PLANT 

GENETIC RESOURCES .., 105* 
LOGGING 

(See also FORESTS) 

Cause of primary forest loss, 47-49 

Logging standards, 12-14 
LUCERNE ACTION PLAN, 163* 

MADAGASCAR, 91 

MANAGEMENT 

(See INTERNATIONAL 
BIODIVERSITY 
MANAGEMENT) 

MATERIAL TRANSFER AGREE- 
MENTS (MTAs), xii, 147-149, 
151, 173 

MONTREAL PROTOCOL ON 
SUBSTANCES THAT DEPLETE 
THE OZONE LAYER, 128 

MOZAMBIQUE, 16 

MULTILATERAL SYSTEM 
Access to plant genetic resources, 
174-177 

NAMIBIA, 66, 85, 86 et seq. 
CBNRM Program, 83-85 
NATIONAL AGRICULTURAL 

RESEARCH SYSTEMS (NARS), 

xii, 163 



NATIONAL ENVIRONMENTAL 
FUNDS (NEFs), xii, 134 

NATIONAL MANAGEMENT 
STANDARDS 

(See INTERNATIONAL BIODI- 
VERSITY MANAGEMENT) 

NATIONAL PARKS, 64 

NATIONAL SEED STORAGE 
LABORATORY (NSSL), xii, 96 

NATURE RESERVES 
Ability to protect biodiversity, 

99-100 
Co-management and, 70-74 
Developing countries and, 71 
Excluding humans from 7 1 
Human dignity and, 97 
Landscape as preferred term, 1 82 
Local people unhappy with, 

72-73 
Strict enforcement in, 61-64 
Treaties and, 1 1 3 
United States view vs Europeview, 

70 
United States Wilderness Act, 70 
Wealth effect, 98-99 

NEPAL, 17 

NIGERIA, 91 

NON-GOVERNMENTAL ORGA- 
NIZATIONS (NGOs), xii, 64, 
134 

OFFICIAL DEVELOPMENT 
ASSISTANCE (ODA), xii, 132 et 
seq. 

OPEC, 147 

ORGANIZATION FOR ECO- 
NOMIC CO-OPERATION AND 
DEVELOPMENT (OECD), xii, 
127, 132 

ORGANIZATION OF AFRICAN 
UNITY (OAU), xii 

OZONE LAYER, 128 



Index 203 



PATENTS, 135-139, 142 
PLANT GENETIC RESOURCES 

(See also as subhead to other topics) 

Free access to, 174-177 

IARCs and, 157-164 

Multilateral system for access to, 
149-154, 174-177 
PLANT VARIETY PROTECTION 

ACT (PVPA), xii, 136, 141 
POACHING, 65-66, 68-69 

Effect on indigenous people, 1 1 
PROPERTY RIGHTS 

Indigenous peoples' knowledge 
and farmers' rights, 155-157 

RHINOHORN, 68, 79, 87 

RIO DECLARATION ON ENVI- 
RONMENT AND DEVELOP- 
MENT, 22, 122 

RURAL ADVANCEMENT FOUN- 
DATION INTERNATIONAL 
(RAFI), xii, 138 

RWANDA, 91 

SOUTH AFRICA, 16, 17, 85 et seq. 

STATEMENT OF PRINCIPLES 
FOR A GLOBAL CONSENSUS 
ON THE MANAGEMENT, CON- 
SERVATION AND SUSTAIN- 
ABLE DEVELOPMENT OF ALL 
TYPES OF FORESTS, 105 

SUBSIDIARY BODY ON SCIEN- 
TIFIC TECHNICAL AND TECH- 
NOLOGICAL ADVICE 
(SBSTTA), xii, 123 

TANZANIA, 1 1 

TECHNICAL ADVISORY COM- 
MITTEE (TAC), xii, 160 

THAILAND, 73 

TRADE RELATED INTELLEC- 
TUAL PROPERTY RIGHTS 
(TRIPs), xii, 142* 



TRANSBOUNDARY RESOURCES 
Transnational management of, 6 

TREATY FOR AMAZONIAN 
COOPERATION, 104 

TREATY ON PLANT GENETIC 
RESOURCES FOR FOOD AND 
AGRICULTURE, 149-154, 176 

UGANDA, 64 

UNITED NATIONS (UN), xii 

UNITED NATIONS. CONFER- 
ENCE FOR ENVIRONMENT 
AND DEVELOPMENT 
(UNCED),xii, 103, 108, 122 

UNITED NATIONS. DEVELOP- 
MENT PROGRAMME (UNDP), 
xii, 165, 166, 167 

UNITED NATIONS. EDUCA- 
TIONAL SCIENTIFIC, AND 
CULTURAL ORGANIZATION 
(UNESCO), xii, 72 
Convention for the Protection of 
the Wold Cultural and 
Natural Heritage, 106 

UNITED NATIONS. ENVIRON- 
MENT PROGRAMME (UNEP), 
xii, 105, 124 

UNITED STATES 
Plant Patent Protection Act, 

135-136 
Plant Variety Protection Act, 136 
Transboundary collaboration 
United States and Mexico, 16 

UNITED STATES. AGENCY FOR 
INTERNATIONAL DEVELOP- 
MENT, 9-10 

UNIVERSAL DECLARATION OF 
HUMAN RIGHTS, 21, 26 

VIENNA CONVENTION FOR 
THE PROTECTION OF THE 
OZONE LAYER, 128 

VIENNA DECLARATION, 24 



204 Index 



WEST AFRICA RICE DEVELOP- 
MENT ORGANIZATION 
(WARDA),xii, 160, 169, 170 
WILD LIFE 

{See also BIODIVERSITY PRO- 
TECTION MANAGE- 
MENT INTERNATIONAL 
BIODIVERSITY METH- 
ODS) 
CITES Convention and, 1 5 
Landscapes and privatization of 

wildlife, 98, 99 
Conservancies, 85-88 
Local management supported by 

free trade, 181-182 
Privatization as community 
empowerment, 79-85 



Ability to protect biodiversity, 100 
Successful privatization, 90-91 
Wildlife industry and, 88-89 
WORLD BANK, 9, 10, 60, 63, 127, 

166 
WORLD CONFERENCE ON 

HUMAN RIGHTS, 24 
WORLD HERITAGE CONVEN- 
TION, 105, 113*, 114 
WORLD HERITAGE FUND, 107 
WORLD TOURISM ORGANIZA- 
TION (WTO), xii 
WORLD WILDLIFE FUND FOR 
NATURE (WWF), xii, 9, 1 1 

ZIMBABWE, 1 1, 16, 66, 85 et seq. 
Campfire Program, 80-83